Full opinion text
ORDER JACK M. GORDON, District Judge. This Court has carefully and personally considered petitioner’s complaint, the entire state court record, the record of the hearings held before the United States Magistrate on the issues of ineffective assistance of counsel pursuant to the Court’s order of April 1,1981, the applicable law, the Report and Recommendation of the United States Magistrate dated July 17, 1981, and the objections to Report and Recommendation of Magistrate filed by petitioner on August 4, 1981. To the extent that the Report and Recommendation of the Magistrate represents a review of an application for post-trial relief pursuant to Rule 20.3c of the General Rules of the United States District Court for the Eastern District of Louisiana, this Court hereby approves the said Report and Recommendation and adopts it as its opinion herein. To the extent that the said Magistrate’s Report and Recommendation represents the Magistrate’s finding that petitioner received effective assistance of counsel in both the “guilt-innocence” stage of his trial and the “sentencing” phase of his trial, this Court, upon its examination of the record as hereinabove set forth hereby makes a de novo determination that the petitioner received effective assistance of counsel within appropriate constitutional minima. A review of the different segments of the Magistrate’s Report is appropriate in light of assertions made by petitioner in his objections. First, it is significant to note that this Court’s order of April 1,1981, affording petitioner an evidentiary hearing dealt solely with the issues of ineffective assistance of counsel, as set forth in a Magistrate’s Report and Recommendation of the same date. In the Magistrate’s April 1, 1981 Report and Recommendation the Magistrate stated to the Court: “While petitioner’s other assertions are capable of disposition on the basis of the state court record, that record is inadequate to determine the substance of petitioner’s ineffective assistance of counsel assertions. . . . ” Thus, the only portion of the Magistrate’s final Report to the Court dated July 17,1981, which is subject to the provisions of 28 U.S.C. Section 636(bXl)(C), is the Magistrate’s Findings and Recommendations pertaining to petitioner’s contentions regarding ineffective assistance of counsel in the two phases of his trial. All other portions of the Magistrate’s Report and Recommendation are governed by Rule 10 of the “Rules Governing Section 2254 Cases in the United States District Court,” effective February 1,1977, as implemented by Rule 20.3c of the General Rules of the United States District Court for the Eastern District of Louisiana. In other words, they are designed to facilitate this Court’s decision as to whether there need be a hearing on any other contentions. Thus, although petitioner is not entitled to file objections under 28 U.S.C. 636(b)(1) to those portions of the Magistrate’s Report and Recommendation other than those findings and recommendations dealing with the issues of ineffective assistance of counsel, this Court nevertheless has considered all of the objections filed by petitioner on August 4,1981, and finds them to be without merit. With regard to the issues of ineffective assistance of counsel for which the Magistrate conducted hearings, it is well to note that the Magistrate initially assigned the date of April 13, 1981, as the date to commence the evidentiary hearing. (See Magistrate’s Minute Entry of April 3, 1981.) Thereafter at a preliminary conference on April 13, 1981, the Magistrate, at the request of counsel for the petitioner, continued the beginning of the evidentiary hearing to June 10, 1981, a period of approximately 60 days. Thereafter Mr. Shapiro, counsel for petitioner, again sought to continue the hearing, and at a June 3, 1981 conference the Magistrate agreed to continue the hearing in part. On June 9, 1981, counsel for petitioner filed list of witnesses, which included Mr. Ray Bass of Houston, Texas, who had been petitioner’s privately retained lead counsel in both phases of the state court trial. The Magistrate patiently listened to evidence on June 10 and 11, 1981, June 18 and 19, 1981, and June 26, 1981. On June 19, 1981, the Magistrate, over Mr. Shapiro’s objection, ordered that Mr. Bass’ testimony be taken over long distance telephone. It was noteworthy that at that time counsel for petitioner had had over three months to secure the testimony of Mr. Bass by deposition, but had only spoken to Mr. Bass on one occasion by telephone. (See page 25 of Transcript of Proceedings before Magistrate on June 19, 1981.) Moreover, at the conclusion of testimony on June 19, the hearing was recessed for another week until June 26, during which time counsel for petitioner could have obtained the deposition if the telephone examination were considered insufficient. The record reflects that counsel for petitioner took no action other than to again request of the Magistrate further delay of at least two weeks for the taking of Mr. Bass’ formal deposition. (See pages 103, 104, Transcript of Proceeding Before Magistrate on June 26, 1981.) This Court fully agrees with the Magistrate’s decision in refusing further delay which would have been unconscionable in light of the extent to which the matter had already been drawn out by the aforesaid narrative of events and by extremely repetitive testimony of little probative value. Next, petitioner objects to the Magistrate’s failure to designate specific findings of fact as such. The Court finds no merit in this further attempt to prolong this proceeding by suggesting that the Court re-refer the matter to the Magistrate for further findings labeled as such. One must bear in mind that the sole purpose of the hearings ordered by this Court was to determine adequacy of counsel within constitutional minima. The Magistrate clearly made findings in this regard, and this Court after review of the transcript of the proceedings and the entire state court record has absolutely no difficulty in making a de novo finding that petitioner received adequate assistance in all phases of his trial. It is true that petitioner lost his case and was found guilty. He was not successful in persuading the jury of the existence of mitigating factors justifying a sentence of life imprisonment rather than death. This does not mean, however, that he did not receive effective assistance of his lawyers as he desired that assistance at the time of the various phases of his trial. Great caution must be taken not to judge the performance of his lawyers through hindsight. Every lawyer makes mistakes; but more than that, every lawyer who lost a case has mused, often painfully, “What if ... ?” ■ It may be as suggested by petitioner’s present counsel that petitioner might not now face the supreme penalty for his heinous acts if different strategy or tactics had been adopted at the time of the trial. But when this Court examines the entire proceeding of the trial along with the challenged behavior and decisions of counsel in the context of the law and other controlling circumstances as they existed at the time, I am left with the strong conviction that counsel rendered effective assistance, particularly in light of the petitioner’s insistence concerning the manner in which his defense be conducted. This Court has been presented with a laundry list of alleged defects cleverly désigned, in the opinion of this Court, to frustrate society’s sacred rules by extending into perpetuity lawyers’ arguments concerning the protections to be afforded one facing the supreme penalty. It is no wonder that many citizens, when considering matters of this nature with a common sense unbesmirched by the sophistry of the law, have concluded that our legal system is incapable of protecting society from wanton acts of violence and uncivilized behavior such as is reflected in the record of petitioner’s conduct on August 14,1977. Petitioner has had his day in court, has had ample opportunity to introduce evidence relating to the issues of ineffective assistance of counsel, has had multiple careful consideration of his statutory and constitutional arguments, and it is time that society’s mandate be carried out. Accordingly, IT IS ORDERED that the petition for writ of habeas corpus pursuant to 28 U.S.C. Section 2254 is- DENIED and the stay of execution issued by this Court on February 11, 1981, is DISSOLVED and the Clerk is directed to ENTER FINAL JUDGMENT. EPILOGUE The murders out of which this case has arisen occurred on August 14, 1977. The petitioner, Martin, was quickly apprehended and was promptly tried, convicted and sentenced within a year. His direct appeal was denied by the Supreme Court of Louisiana in 1979, and the Supreme Court of the United States denied certiorari finally on January 19,1981. Thereafter the petitioner filed writs of habeas corpus and accompanying applications for stay of execution in the state courts, which applications were denied by the state district court on February 9, 1981, and the Louisiana Supreme Court on February 10, 1981. Petitioner then filed the instant petition in this Court, pursuant to 22 U.S.C. § 2254 on February 11, 1981, two days prior to the scheduled date of his execution, February 13, 1981. This Court, after a hearing at which petitioner and the State were represented by counsel, concluded that it would be physically impossible for the Court to discharge its statutorily mandated duty under 28 U.S.C. § 2254 prior to February 13, 1981, and, accordingly, I was required to grant the petitioner’s requested stay of execution in order that the petitioner might have an opportunity to have his petition considered as required by Section 2254. The convergence of a number of similar stays of execution at about the same time, along with publicity attendant to a statement by the Chief Justice of the United States, caused me to experience a remarkable public outcry. The stay of execution of state prisoners in connection with Section 2254 petitions has generally been perceived as federal judicial tyranny by the public, the press and, indeed, others who should know better, including lawyers and judges. The number of thoughtful letters received from citizens, along with copies of ill-informed editorials from around the country persuades me that public respect for our entire federal judicial process is being endangered. Hence, I believe it appropriate to state a few words, not as an apology for the fashion in which this Court has discharged its duty in this case, but so that thoughtful citizens and editorial writers may, if they wish to attack what they perceive to be a serious flaw in our system, address their complaints to the appropriate forum, the United States Congress, rather than individual United States Judges who have no choice but to attempt to discharge faithfully the statutorily mandated duties imposed by the Congress. On February 8,1981, just three days prior to this Court’s initial action of granting the stay of execution, the Honorable Warren E. Burger, Chief Justice of the United States Supreme Court, addressed the Mid-Winter meeting of the American Bar Association in Houston, Texas. His candid and extremely perceptive comments concerning flaws in our system of justice were widely reported in the public press, particularly those remarks pertaining to the disrespect for our system of justice brought about by lack of finality in criminal cases. With respect to this problem, the Chief Justice said: . . . The search for “perfect” justice has led us on a course found nowhere else in the world. A true miscarriage of justice, whether 20-, 30- or 40-years old, should always be open to review, but the judicial process becomes a mockery of justice if it is forever open to appeals and retrials for errors in the arrest, the search, or the trial. Traditional appellate review is the cure for errors, but we have forgotten that simple truth. Our search for true justice must not be twisted into an endless quest for technical errors unrelated to guilt or innocence. The system has gone so far that Judge Henry Friendly, in proposing to curb abuses of collateral attack, entitled his article, “Is Innocence Irrelevant?” And Justice Jackson once reminded us that the Constitution should not be read as a “suicide pact.” Each of these men, of course, echoed what another great jurist, Justice Benjamin Cardozo, wrote more than fifty years ago in his essays on “the nature of the judicial process.” I am not advocating a new idea but merely restating an old one that we have ignored. At this point, judicial discretion and judicial restraint require me to stop and simply to repeat that governments were instituted and exist chiefly to protect people. If governments fail in this basic duty they are not excused, they are not redeemed by showing that they have established the most perfect systems to protect the claims of defendants in criminal cases. A government that fails to protect both the rights of accused persons and also all other people has failed in its mission. I leave it to you whether the balance has been fairly struck. * * * * * * Like most United States District Court Judges who daily observe the effect on our system of endless appeals I wholly subscribe to the Chief Justice’s observations. It appears that many individuals and editorial writers, perhaps reading the Chief Justice’s remarks out of context, felt that he was being critical of actions by individual judges, rather than commenting upon the net result of the status quo brought about by application of statutorily mandated duties. Surely no thoughtful person could believe that a judge has any option other than to carry out the law as mandated by the Congress. For a judge to do otherwise, regardless of his personal views, would indeed be an act of judicial tyranny. Thus, I have felt that there needs to be a simple explanation of the constitutional and statutory requirements which bind our United States District Court Judges so that the public may better appreciate the rectitude of actions by judges. I say this not from any viewpoint that judges need to be concerned about their popularity, but rather because of my deep concern about the importance of respect for our system of justice, which is in danger when the public begins to feel that judges act from individual proclivity rather than in furtherance of justice under the law. In the course of searching for a way to explain in simple fashion the application of federal habeas corpus law to state prisoners I found that other United States District Court Judges were experiencing the same concerns. In particular, Judge William Terrell Hodges of the Middle District of Florida has recently expressed such concerns in an epilogue to an opinion denying a writ of habeas corpus in the case of Darden v. Wainwright, 513 F.Supp. 947 (M.D.Fla.) Judge Hodges’ opinion so completely expresses my own view that I take the liberty of quoting at length: The nature of the case, and others like it, has attracted intensive publicity which has, in turn, served to fuel a growing public frustration concerning the administration of criminal justice in the courts. The Chief Justice of the United States in his last annual address to the American Bar Association recognized and gave voice to the same public frustration; and, to the extent that this very real exasperation is fomenting an overall loss of confidence on the part of the public in its court system, particularly the federal courts, those who supply the public with information and opinion should be particularly careful to impart only that information which is accurate in every detail. Unfortunately, many lay persons and even some lawyers and judges do not seem to understand the historical or the contemporary role of the federal courts in habeas corpus proceedings involving state prisoners, and that lack of understanding has caused the public to be the recipient of a considerable quantity of misinformation and erroneous innuendo concerning the proper institution of government upon which responsibility should be placed for both the condition and the cure. The Constitution of the United States, Article I, Section 9, Clause 2, the so-called non-suspension clause, provides as follows: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Many seem to believe that this constitutional provision is the direct jurisdictional base of habeas corpus proceedings involving state prisoners. That conclusion is open to substantial doubt. Until 1867, or during the first seventy-eight years of constitutional government, the writ of habeas corpus in the federal courts was governed by the Judiciary Act of 1789 and extended only to prisoners held in custody by the United States, not the several states. Furthermore, even with respect to federal prisoners, the scope or power of the writ was limited to an inquiry as to the jurisdiction of the sentencing tribunal. In 1867 the availability of the writ of habeas corpus in the federal courts was extended to state prisoners by act of congress now embodied in 28 U.S.C. § 2254. Even then, however, the early cases limited the reach of the writ to an examination of the jurisdiction of the sentencing court. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). See also Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973) (Powell, J., concurring), and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Recently, in Swain v. Pressley, 430 U.S.. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977), dealing with the statute creating the Superior Court of the District of Columbia, the Court’s decision suggests that the District Courts might well be relieved, with constitutional impunity, of any jurisdiction to issue writs of habeas corpus at the behest of state prisoners so long as state law affords an adequate and effective collateral remedy to test the legality of the petitioner’s detention. In any event, whether the constitution has etched the writ in stone to any degree or not at all is not the point here. It is enough that the existing statutes, 28 U.S.C. §§ 2241 and 2254, afford the remedy and thus require the District Courts to entertain a state prisoner’s application for a writ of habeas corpus if it is claimed that he is detained in custody in violation of the Constitution or laws or treaties of the United States. Moreover, the fact that the state courts have heard and adjudicated the constitutional claim does not generally preclude the authority and duty of the District Court to make an independent determination of the constitutional issue. Indeed, as a matter of comity to the state courts, the statute requires that all existing state remedies be exhausted before the petition is filed in the federal court so that, of necessity, the habeas proceeding is always a rehashing of the constitutional issues already decided in the state courts. The point of this discussion is that, while there is great clamor for statutory redress of our present law concerning habeas corpus relief, all involved should remember (or should be clearly informed, as the case might be) that the existing law is itself of statutory origin. It was not created, and cannot be amended, by the courts. Given the statute it would be a gross violation of law and of a judge’s oath of office if he should arbitrarily decline to entertain a proper petition filed under it; and to the extent there is widespread belief that the federal courts have somehow “bootstrapped” their own authority to indiscriminately meddle in state court criminal prosecutions — a belief nurtured by inferences to that effect in the public press — unjustified and unnecessary damage is being done to the very system of judicial administration in which all of us are so vitally interested. Those who wish to debate the need for change should focus their attention and the brunt of their remarks upon the statute and the Congress, not the Courts. In addition to substantive issues, there is also public concern about the length of time taken by the courts in disposing of habeas corpus proceedings. Quite apart from the notoriously crowded dockets of the federal courts, however, a circumstance which is also beyond the control of the courts, there is no provision in 28 U.S.C. § 2254 requiring expedited consideration whereas there are at least two dozen other statutes which do require that preference be given to specified classes of cases such as, for example, criminal cases governed by the Speedy Trial Act, 18 U.S.C. § 3161. Whatever the future may hold for habeas corpus proceedings instituted by state prisoners generally, and whatever the public perspective may be, the case of David Dene Martin has been thoroughly, thoughtfully and quietly considered under the statute and the constitution, and judgment will now be entered as directed. The Petitioner may then seek timely review by the Court of Appeals, as is his right. REPORT AND RECOMMENDATION MARCEL LIVAUDAIS, Jr., Magistrate. Petitioner, David Dene Martin, is a state prisoner presently incarcerated in the Louisiana State Penitentiary at Angola, Louisiana. On April 10, 1978, petitioner was convicted by a twelve-person jury in the Seventeenth Judicial District Court for the Parish of Lafourche, Louisiana, on four counts of first degree murder in violation of La.R.S. 14:30. In the sentencing stage of his bifurcated trial, the jury unanimously recommended that the petitioner be sentenced to death on each count after finding the existence of two of the necessary aggravating factors listed by the Louisiana Code of Criminal Procedure, Article 905.4: (1) that he knowingly created a risk of death or great bodily harm to more than one person, and (2) that the offense was committed in an especially heinous, atrocious or cruel manner. The conviction and sentence were affirmed by the Supreme Court of Louisiana. State v. Martin, 376 So.2d 300 (La.1979). An application for rehearing was denied on November 1,1979. Certiorari was thereafter denied. Martin v. State of Louisiana, --- U.S. ---, 101 S.Ct. 540, 66 L.Ed.2d 297 (1980). An application for rehearing was denied on January 19, 1981. Martin v. State of Louisiana, --- U.S. ---, 101 S.Ct. 931, 66 L.Ed.2d 847 (1980). Following the United States Supreme Court’s refusal to hear petitioner’s appeal, petitioner applied for a stay of execution pending an evidentiary hearing on his first post-conviction application for a writ of habeas corpus in the Seventeenth Judicial District Court. (Record Document 12). On February 9, 1981, the state trial judge denied the application. (Record Document 12). Petitioner next applied for the same post-conviction relief in the Supreme Court of Louisiana which denied the application on February 10, 1981. (Record Document 12). Petitioner then filed suit in the United States District Court for the Eastern District of Louisiana seeking a stay of execution and an application for a writ of habeas corpus. On April 1, 1981, it was ordered that an evidentiary hearing be afforded petitioner on the issues of ineffective assistance of counsel raised herein. (Record Document 15). Petitioner has presented the grounds raised herein before the Supreme Court of Louisiana and has therefore, exhausted his state remedies as required under 28 U.S.C. § 2254(b). Petitioner now seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. He contends that the following grounds entitle him to relief: 1. Petitioner was deprived of his federal constitutional right to the effective assistance of counsel at the guilt-innocence stage of his trial. 2. Petitioner was denied effective assistance of counsel at the sentencing phase of his trial. 3. The trial court committed constitutional error in failing to provide the jury with limiting instructions on the statutory aggravating factors in Article 905.4 of the Louisiana Code of Criminal Procedure, thereby increasing the likelihood of an arbitrary and capricious death verdict case. 4. Petitioner was denied a fair sentencing hearing. 5. The petitioner was deprived of his constitutional rights under the Fourteenth Amendment because there was insufficient evidence for a jury to find beyond a reasonable doubt that the offense was committed in an especially heinous, atrocious or cruel manner within the meaning of Article 905.4(g) of the Louisiana Code of Criminal Procedure. 6. The Supreme Court of Louisiana violated petitioner’s constitutional rights under the Eighth and Fourteenth Amendments when it only reviewed the evidentiary sufficiency of one of the two aggravating circumstances found by the jury. 7. The Supreme Court of Louisiana has adopted inconsistent standards of appellate review thereby increasing the likelihood of arbitrary and capricious sentencing in death cases. 8. The Supreme Court of Louisiana erred in reviewing other first degree murder cases only in the district in which the sentence was imposed rather than reviewing first degree murder cases on a statewide basis and in failing to consider other first degree murder cases in which a lesser sentence was actually imposed. 9. The trial court erroneously instructed the jury concerning the mitigating circumstances and the role of such circumstances in determining a death sentence. 10. The Louisiana death penalty statute is unconstitutional under the Eighth and Fourteenth Amendments to the Constitution of the United States. 11. Petitioner was deprived of his constitutional right to effective cross-examination of the witnesses against him, under the Sixth and Fourteenth Amendments to the Constitution of the United States, when he was denied access to the statements of witnesses and their grand jury testimony after they had testified at trial. 12. Petitioner was deprived of his constitutional right to effective cross-examination of the witnesses against him, under the Sixth and Fourteenth Amendments to the Constitution of the United States, when he was denied access to the grand jury testimony and the complete statements of a prosecution witness after inconsistencies between her trial testimony and pre-trial statements had been developed at trial. 13. Petitioner was deprived of his right to due process of law under the Fourteenth Amendment to the Constitution of the United States by the instructions on reasonable doubt at the guilt-innocence stage of the trial. 14. Petitioner was deprived of his constitutional right to a jury representative of a cross-section of the community by the exclusion of prospective jurors for cause solely on the basis of their opposition to capital punishment. 15. The petitioner was deprived of due process of law under the Fourteenth: Amendment when his request for a mistrial was denied after a prosecution witness testified about inadmissible and prejudicial hearsay. 16. The petitioner was deprived of his constitutional right to an impartial jury, in violation of the Sixth and Fourteenth Amendments, by excluding for cause jurors who never stated that they were unequivocally opposed to capital punishment. 17. The state of Louisiana has adopted an impermissibly broad and vague construction of Article 905.4(d) of the Louisiana Code of Criminal Procedure in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States. 18. There was insufficient evidence at trial to support a finding beyond a reasonable doubt that the petitioner knowingly created a risk of death or great bodily harm within the meaning of Article 905.4(d) of the Louisiana Code of Criminal Procedure. 19. The petitioner was deprived of due process of law when his death sentence was affirmed in part on the basis of a nonstatutory aggravating circumstance. 20. The prosecutor failed to disclose material evidence to the defense at an adequate time prior to trial in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States. 21. The death sentences imposed upon petitioner were disproportionate and excessive under Louisiana law and the Eighth and Fourteenth Amendments to the Constitution of the United States. The issues raised by petitioner will be categorized for purposes of analysis. Part One will comprise those claims affecting the guilt-innocence stage set forth in grounds 1, 11, 12, 13, 14, 15, 16 and 20. Part Two will comprise those claims affecting the sentencing stage set forth in grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 17, 18, 19 and 21. In reviewing a state prisoner’s application for a writ of habeas corpus, a federal court is bound by the provisions set forth in 28 U.S.C. § 2254(d) and the standards set forth in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Consideration must be given to 28 U.S.C. § 2254(d) which provides that in a federal habeas corpus application of a state prisoner, a determination after a hearing on the merits of a factual issue made by a state court of competent jurisdiction and evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless one of the seven specified conditions therein is found to exist or the reviewing federal court concludes that the relevant state court determination is not fairly supported by the record. Sumner, supra. If none of the conditions set forth in 28 U.S.C. § 2254(d) are found to exist and the state determination is adequately supported by the record, “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the state court was erroneous.” 28 U.S.C. § 2254(d). The Supreme Court of Louisiana made determinations of factual issues which were reduced to writing in a written opinion and, the state district court made factual determinations which were reduced to writing in the transcript of that court’s ruling in a hearing on petitioner’s application for habeas corpus. Therefore, various allegations in petitioner’s application for habeas corpus herein will be considered under Sumner, supra, and the provisions enumerated in 28 U.S.C. § 2254. PART ONE In ground one petitioner alleges ineffective assistance of counsel at the guilt-innocence phase of his trial. It is established law in this Circuit that a defendant in a criminal proceeding, under the Sixth Amendment, is entitled to representation by an attorney reasonably like to render and rendering reasonably effective assistance. Nelson v. Estelle, 642 F.2d 903 (5th Cir. 1981); Beckham v. Wainwright, 639 F.2d 262 (5th Cir. 1981); Beavers v. Balkcom, 636 F.2d 114 (5th Cir. 1981); Mays v. Balkcom, 631 F.2d 48 (5th Cir. 1980); Hill v. Wainwright, 617 F.2d 375 (5th Cir. 1980); United States v. Johnson, 615 F.2d 1125 (5th Cir. 1980); Rummel v. Estelle, 590 F.2d 103 (5th Cir. 1979); Carbo v. United States, 581 F.2d 91 (5th Cir. 1978). Additionally, and most important in a review by a federal habeas court, effective assistance of counsel does not mean errorless assistance, nor counsel judged ineffective by hindsight. (emphasis supplied) Nelson, supra, at 906; Beckham, supra; Beavers, supra; Kemp v. Leggett, 635 F.2d 453 (5th Cir. 1981); Clark v. Blackburn, 619 F.2d 431 (5th Cir. 1980); Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), cert. denied 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78; United States v. Gray, 565 F.2d 881 (5th Cir. 1978). A federal habeas court must review the actual performance of counsel and determine whether reasonably effective assistance was rendered based upon the totality of the circumstances and the entire record. Nelson, supra at 906; Lovett v. State of Florida, 627 F.2d 706 (5th Cir. 1980); U.S. v. Gray, supra. It must be determined whether there has been a constitutional infraction of petitioner due process rights which would render the trial as a whole “fundamentally unfair.” Cobb v. Wainwright, 609 F.2d 754 (5th Cir. 1980); Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979). This ground must be rejected. Petitioner asserts counsel were ineffective in failing to properly investigate the case. Petitioner was represented by Ray Bass of Houston, Texas as lead counsel and James Lightfoot of Houma, Louisiana as local counsel. The evidence adduced at the federal evidentiary hearing abundantly demonstrates that counsel made a most thorough and adequate investigation in preparation of petitioner’s defense. Lead counsel met with petitioner three times prior to trial (TR 11, June 19,1981) and local counsel met with petitioner numerous times during their investigation. (TR 133, June 10, 1981). Additionally, counsel employed an investigator who worked extensively on the investigation of the case. (TR 12, June 19, 1981; TR 134, June 10,1981). Counsel also interviewed numerous witnesses and investigated the time sequence relevant in the statements of witnesses to determine if the statements were consistent. (TR 12, June 19, 1981; TR 134, June 10, 1981). Petitioner asserts that counsel were ineffective in failing to obtain evidence of his drug usage. The theory of the defense was that petitioner did not commit the crime and that he did not make any statements concerning his perpetration of the four murders. Petitioner told counsel he either wanted a complete acquittal or the death penalty. (TR 36, June 19, 1981; TR 82, June 10, 1981). Even so, counsel discussed the possibility of an intoxication defense but decided against such a defense. (TR 15, 16, June 19, 1981; TR 79, 80, 81, 82, June 10, 1981). Lead counsel explained why the defense of diminished capacity was not used: “One, I was convinced that the defense of diminished capacity because of drugs was really not a defense that was there. I was not — I mean no one indicated to me any factors that would indicate that at the time of the offense Mr. Martin was intoxicated as a result of drug use. Now, there had been some discussion about the use of drugs. One thing that concerned me in that regard was the incident involving Mr. and Mrs. Martin’s child and the birth of their child. There had been a child that was born to Mr. and Mrs. Martin with some very serious complications. One of the complications being some brain damage. It appeared that those complications may very well have been related to drug use on the part of either Mr. Martin or Mrs. Martin. And I was concerned that a jury in a death penalty case, where there had been some allegations and some evidence offered that Mr. Martin had been responsible for the death of four people, any suggestion that he might have, either inadvertently or through negligence or engaging himself in unlawful activities such as the use of drugs, had been responsible for the serious complications to his child, may have seriously prejudiced Mr. Martin in the eyes of the jury. It was a tactical decision, but I saw no benefit to be gained, and certainly saw some very down-side aspects to the whole situation. * * * * * * The theory was that someone other than Mr. Martin had committed the crimes, that the four people who were shot had actually been shot somewhere else and placed in the trailer. And the physical evidence was developed in this regard. Personally, I was convinced that the physical evidence made a fairly strong showing that these people could not have been shot in that small trailer. And that was the theory of the defense of Mr. Martin.” (TR. 16, 17, June 19, 1981). Petitioner next contends that counsel were ineffective in their failure to file a motion for a change of venue. The evidence clearly shows that counsel thoroughly discussed the possibility of filing a change of venue motion but decided against filing such a motion. (TR 73, 74, 75, June 10, 1981; TR 21, 22, June 19, 1981). This was clearly a “tactical decision” (TR 21, June 19, 1981) of counsel which was thoroughly considered and cannot rise to the level of ineffective assistance. Petitioner contends that counsel were ineffective in failing to obtain an adequate psychiatric evaluation of himself to explore a possible defense of not guilty by reason of insanity. The record reveals that counsel had petitioner evaluated by a psychiatrist and that counsel discussed the possibility of an insanity defense but decided against using it. (TR 77, 78, June 10,1981; TR20.21, June 19, 1981). Lead counsel stated: “Mr. Martin was not agreeable to a defense of insanity, and by that I mean that Mr. Martin, one, did not appear to be insane, two, Dr. Byrd was not of the opinion that Martin was insane, and three, Mr. Martin was opposed to an insanity defense. He did not want an insanity defense to be raised.” (TR 20, 21, June 19, 1981). Petitioner alleges that counsel were ineffective in failing “to engage in the systematic, exhaustive pre-trial motion practice which is indispensable to the effective defense of capital cases.” A review of the state record reveals that counsel filed extensive pre-trial motions in defense of petitioner. (Vol. 1, State TR. 28-39, 54, 56). Petitioner does not complain of the omission of any particular motion which could have been beneficial to him but only states that counsel were ineffective in failing to follow an “exhaustive pre-trial motion practice.” The state court record together with the evidence adduced at the federal evidentiary clearly establishes that this allegation is without foundation. Finally, petitioner contends that counsel were ineffective in failing to object to improper closing argument by the prosecution. Petitioner makes only the conclusory allegation and does not refer to any specific portions of the closing argument which were allegedly improper. The closing argument of the state at the guilt-innocence stage of trial has been reviewed (Vol. 10, State TR. 1499-1502, 1532-1540) and error, if any, of counsel in failing to object to the alleged improper closing argument did not render the trial as a whole fundamentally unfair. This allegation should be rejected. In addressing the ineffective assistance of counsel grounds alleged petitioner’s application for post-conviction relief, the presiding trial judge stated in his ruling denying such relief: “In this particular case I was the trial judge from start to finish and I observed the manner in which counsel performed throughout the preliminary stages, the trial, and the appeal. The defendant was represented by two persons whom in my opinion are very competent counsel: Mr. Ray Bass and Mr. James Lightfoot. I might further add that Mr. Lightfoot’s wife, Mrs. Lynn Lightfoot, also assisted at some stages of the proceedings. It was my impression of the Defense that it tried vigorously to protect the rights of the defendant and to secure his acquittal of the charges. I feel that the defense counsel in this case did an admirable job in defending a case that was extremely difficult. Based on my experience in trying criminal cases and having presided in this case from start to finish, I certainly cannot say that based on the face of this record or the claims made by the defendant that the Defense was inadequate. The mere fact that the result is not to the defendant’s liking does not establish this claim.” (State TR App. Post Conviction Relief 2, February 9, 1981). In grounds eleven and twelve petitioner contends that he was denied his Sixth Amendment rights under the Confrontation Clause because the state’s denial of access to the testimony of state witnesses prior to trial denied him the right to effective cross-examination of these witnesses. These grounds should be rejected. The Confrontation Clause does not provide the defendant with any right to pre-trial or in-trial discovery of the state’s evidence. The purpose of the Confrontation Clause is to provide the defendant with the opportunity to challenge the testimony introduced by the state against the accused at trial by means of cross-examination of the declarant of the testimony. See Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531, 2537-38, 65 L.Ed.2d 597 (1980). Where the declarant whose testimony the state wishes to introduce is present at trial, gives his sworn testimony at trial, and is subject to cross-examination by the defense as happened at the petitioner’s trial, the Confrontation Clause is satisfied. See id. at 65, 100 S.Ct. at 2538. The petitioner has not cited, and this court has not discovered anything in the English or American history of the Confrontation Clause, or in any decision of the Supreme Court interpreting that clause, which suggests in the slightest that the Confrontation Clause is in any way concerned with discovery. See generally Ohio v. Roberts, supra, and authorities cited therein. Accepting the petitioner’s argument would transform the Confrontation Clause from a device designed to prevent trial by affidavit into a guarantee of the right to demand trial by affidavit. In addition, petitioner’s argument would require this Court to hold the Jencks Act, 18 U.S.C. § 3500, unconstitutional because it permits the government to withhold witness statements to the defense until after they have testified. In short, any right to discovery guaranteed by the federal constitution must find its source in cases such as United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) rather than the Confrontation Clause. In ground thirteen petitioner argues that he was deprived of his right to due process of law under the Fourteenth Amendment by the instruction on reasonable doubt at the guilt-innocence stage of the trial. Initially, it should be noted that defense counsel raised no objection to the jury charge on reasonable doubt at trial. Nowhere in his petition does petitioner allege specific reasons as grounds for this claim, only the conclusory allegation is set forth. This ground should be rejected. Before a federal court may grant relief under 28 U.S.C. § 2254 based on an alleged error in a state trial court’s unobjected to charge, the error must be so egregious as to rise to the level of a Constitutional violation or so prejudicial as to render the trial itself fundamentally unfair. Bryan v. Wainwright, 588 F.2d 1108 (5th Cir. 1979); Bradley v. Wainwright, 561 F.2d 1200 (5th Cir. 1977). In reviewing the adequacy of a jury instruction, a federal habeas court must not examine the instruction in isolation from the entire charge but must examine a challenged instruction in light of the charge as a whole. Henderson v. Kibbe, 431 U.S. 145, 152 n.10, 97 S.Ct. 1730, 1736 n.10, 52 L.Ed.2d 203 (1977); Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-401, 38 L.Ed.2d 368 (1973); Stephens v. Zant, 631 F.2d 397, 405 (5th Cir. 1980), modified, 648 F.2d 446 (1981). Upon reviewing the charge as a whole, (Vol. 10, State TR. 1541-69, 1571-73), it is clear that no constitutional violation occurred by the instruction on reasonable doubt at the guilt-innocence stage of the trial. The charges given by the trial court were adequate and proper. There was no error. In ground fourteen petitioner has argued that the exclusion for cause of veniremen at the guilt stage of his trial who were irrevocably opposed to capital punishment denied him the right to a jury representative of the community in violation of the Sixth and Fourteenth Amendments. This ground should be rejected. The Fifth Circuit rejected this argument in Spinkellink v. Wainwright, 578 F.2d 582 (1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). The Spinkellink court recognized that the Supreme Court held in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) that the Sixth and Fourteenth Amendment right to a jury trial included the right to a jury venire drawn from a representative cross-section of the community. Id. at 597. But, as the Supreme Court unanimously held in Lockett v. Ohio, 438 U.S. 586, 596-97, 98 S.Ct. 2954, 2960-61, 57 L.Ed.2d 973 (1978), the Sixth and Fourteenth Amendment right to a representative jury does not include the right to be tried by jurors who are unable or unwilling to follow the law and instructions of the trial judge and act as impartial jurors at the guilt stage of a capital case. The state as well as the defendant has legitimate and vital interests at stake at both the guilt and penalty stages of a capital case. The Supreme Court reaffirmed this balance in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and summarized the Court’s cases discussing this principle: “This line of cases established the general proposition that a juror may not be challenged for cause based upon his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath. The State may insist however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.” In Spinkellink, the court held that the state was entitled to conclude that veniremen who are irrevocably opposed to capital punishment would engage in jury nullification if permitted to sit at the guilt but not the penalty stage of a capital case and so would not be impartial fact finders, in much the same fashion as would relatives of the defendant acting as jurors. Spinkellink v. Wainwright, supra, 578 F.2d at 597. Because this rationale provides a sufficient ground for excluding such jurors, a defendant’s Sixth and Fourteenth Amendment rights would not be violated by the practice challenged by petitioner. In ground fifteen petitioner contends that he was deprived of his right of due process of law by the trial court’s denial of his request for a mistrial after a police officer testified to hearsay. This ground should be rejected. A review of the record reveals that certain clothing found at petitioner’s residence was admitted into evidence. At trial, a police officer testified before the jury concerning the acquisition of the clothing: “The blue jean shirt was received by Detective Boudreaux from the wife of Mr. Martin, and the trousers came from a bathroom at that residence that Mrs. Martin identified as belonging to her husband.” (Vol. 8, State TR 1257). Petitioner objected and requested the judge to instruct the jury to disregard the comment. The trial judge complied with the request. (Vol. 8 State TR 1257). Subsequently, another police officer testified: “This is a shirt we picked up out of the house which Gloria Martin gave to Detective Lirette and said it belonged to David Martin.” (Vol. 9, State TR 1296, 1297). Petitioner again objected and the trial judge again complied with his request for an admonition. (Vol. 9, State TR 1297). He then requested a mistrial arguing that such hearsay was so prejudicial that an admonition to the jury was insufficient to cure it. (Vol. 9, State TR 1298). The trial judge denied the request. (Vol. 9, State TR 1298). On petitioner’s direct appeal, the Louisiana Supreme Court examined the entire record and concluded that the hearsay statement was not so prejudicial that a mistrial should have been granted and did not result in a miscarriage of justice. State v. Martin, supra, 376 So.2d at 308. The Louisiana Supreme Court stated in its opinion on petitioner’s direct appeal: “Examining the record as a whole, the hearsay statement does not appear so prejudicial that a mistrial should have been declared. The State apparently introduced the shirt at trial because the spot of blood was arguably inculpatory since it may have been from one of the victims. However, the victim’s blood types were never introduced at trial and the only evidence of blood at the murder scene indicated type 0 blood. Moreover, the defendant offered evidence that his own blood type was type A, the same as the blood on the work shirt. There did not appear to be a serious dispute that the shirt did not belong to defendant since defendant’s wife located the shirt for the police. Although the police officer should not have testified to hearsay, this error probably did not result in a miscarriage of justice, prejudice to the substantial rights of the accused or constitute a substantial violation of a constitutional or statutory right. LSA-C.Cr.P. art. 921.” Id. at 308. For purposes of review by a federal habeas court it must be determined whether there has been a constitutional infraction of petitioner’s due process rights which rendered the trial as a whole “fundamentally unfair.” Nelson v. Estelle, 642 F.2d 903, 906 (5th Cir. 1981); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Cobb v. Wainwright, 609 F.2d 754 (5th Cir. 1980). Petitioner contends that a constitutional violation occurred when the trial court denied his request for a mistrial after having admonished the jury that it was not to consider the hearsay statement of the police officer, (see Vol. 9, State TR 1297-98). After a careful and thorough review of the state record, it is evident that petitioner’s proposition cannot withstand the applicable standards required for habeas corpus relief. The admonition to the jury at trial was adequate as the hearsay was not so prejudicial that the admonition was insufficient to cure it. Consequently, any claim that petitioner’s trial was rendered “fundamentally unfair” by the trial court’s denial of his request for a mistrial after a police officer testified to hearsay which was not admitted into evidence lacks validity. In ground sixteen petitioner has argued that the exclusion for cause from the guilt stage of his trial of those veniremen who would have been impartial factfinders at that stage but who would have automatically voted not to impose the death penalty violated his right under the Sixth and Fourteenth Amendments to a trial by an impartial jury. This selection process resulted in the selection of a jury that was “death-qualified” and “prosecution-prone” with respect to the question of his guilt or innocence. Therefore, according to the petitioner, the jury that convicted him was biased in favor of the prosecution and so deprived him of his right to trial by an impartial jury. This ground must be rejected for several reasons. The Fifth Circuit rejected this argument in Spinkellink v. Wainwright, supra, 578 F.2d 582 (1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). The Spinkellink court both noted that the proposition that a jury composed in such a manner would be more likely to convict than a jury which included persons irrevocably opposed to capital punishment had been rejected by the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 518, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968) on the basis of the evidence available at that time, and also recognized that the proof of proposition in question developed since the Witherspoon decision still remained “far from conclusive.” Spinkellink v. Wainwright, supra, 578 F.2d at 593-94 (footnote omitted). But, assuming that proposition to be true, the court rejected the conclusion to be drawn from that proposition advanced by the petitioner there, and here, that the greater likelihood of a “death-qualified” jury to convict rendered such a jury partial towards the prosecution. The Spinkellink court concluded that neither the exclusion of persons irrevocably opposed to capital punishment nor the inclusion of persons without such personal attitudes denied a defendant in a capital case the right of an impartial jury on the question of his guilt or innocence. Spinkellink v. Wainwright, supra, 578 F.2d at 593-96. The Spinkellink court based its decision on three propositions regarding the requirement that a jury in a criminal case be impartial. First, the state as well as the accused is entitled to an impartial jury. Second, the numerical difference between the number of guilty verdicts rendered by “death-qualified” and “non-death qualified” juries, by itself, did not demonstrate a difference between the two groups regarding their impartiality merely because of the numerical difference between the results achieved under the jury selection systems. And third, the state was entitled to conclude that persons irrevocably opposed to capital punishment would engage in jury nullification if seated at the guilt stage of a capital case but not at the penalty phase. The first proposition, according to the Spinkellink court, flowed from the requirement that a jury in a criminal case be im partial, the second from the nature of the impartiality required of criminal juries, and the third, from the presence of jury nullification. Accordingly, the Spinkellink court concluded that the jury selection process challenged by the petitioner in that case and here did not violate his right to an impartial jury. In ground twenty petitioner contends that the prosecution failed to disclose evidence of blood tests of the victims at an adequate time prior to the trial in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States. The record reveals that the victim’s blood types were not discovered until after the trial, at which time, the evidence was disclosed and the trial judge thereafter denied petitioner’s motion for a new trial. This ground should be rejected. Petitioner filed a motion for pre-trial discovery requesting specifically the results of any scientific tests or experiments conducted upon the bodies of the victims. Additionally, a pre-trial motion for discovery and inspection of evidence favorable to the petitioner on the issue of guilt or innocence was filed. Petitioner’s allegation that the prosecution’s failure to disclose evidence of blood tests of the victims violated his due process rights must be viewed under the right of discovery of exculpatory evidence as established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The United States Supreme Court held in Brady, supra, at 87, 83 S.Ct. at 1196, that suppression by the prosecutor of evidence favorable to an accused when the accused has specifically requested the evidence violates due process “where the evidence is material either to guilt or punishment.” The United States Fifth Circuit Court of Appeals has held that a defendant seeking to establish a Brady violation must prove the following: (1) the prosecution’s suppression of the evidence; (2) the favorable character of the suppressed evidence for the defense; and (3) the materiality of the suppressed evidence. Ogle v. Estelle, 641 F.2d 1122, 1124 (5th Cir. 1981); Monroe v. Blackburn, 607 F.2d 148, 150 (5th Cir. 1979); cert. denied, 446 U.S. 957, 100 S.Ct. 2929, 64 L.Ed.2d 816 (1980), quoting United States v. Sink, 586 F.2d 1041, 1051 (5th Cir. 1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979); United States v. Anderson, 574 F.2d 1347, 1353 (5th Cir. 1978). The standard of materiality under Brady where the prosecutor has not disclosed information despite a specific defense request is whether “the suppressed evidence might have affected the outcome of the trial.” United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976). The Louisiana Supreme Court, in a written opinion, determined that the “discovery of the victim’s blood types was not so material that it would have produced a different result than the verdict reached.” State v. Martin, supra at 309. Clearly, the Louisiana Supreme Court made a factual determination on the materiality of this newly discovered evidence and such determination is entitled to a presumption of correctness under Sumner and 28 U.S.C. § 2254 where none of the specified conditions therein exist. On petitioner’s direct appeal the Louisiana Supreme Court stated: “In the instant case discovery of the victim’s blood types was not so material that it would have produced a different result than the verdict reached. The presence of blood all over the trailer, including the walls, weakened the defendant’s theory that the bodies were moved. Additionally, no other drops of blood were found in a direct line between the victim having type 0 blood and the kitchen counter, nor were any drops of blood found outside or leading into the trailer. The amount of blood in the trailer as well as the fact that no clotting occurred further supported the theory that the murders occurred in the trailer.” State v. Martin, supra, at 309. In order to establish a Brady claim petitioner must show that the prosecution suppressed material, exculpatory evidence, 373 U.S. at 87, 83 S.Ct. at 1196. Even assuming the evidence here was technically “suppressed,” there was no Brady violation. The blood test results obtained and diagnosed by the prosecution after trial, were neither exculpatory nor material to petitioner’s defense. United States v. Agus, supra, 427 U.S. at 112-113, 96 S.Ct. at 2401-2402. See State v. Martin, supra at 309. This court has thoroughly analyzed the record and has found no support for the petitioner’s contention that he was denied his due process rights under the Fourteenth Amendment to the Constitution of the United States. This allegation is without merit. PART TWO In ground two petitioner contends that his counsel were ineffective at the sentencing phase of his trial. Applicable law in this regard has been set forth earlier herein in that portion discussing effectiveness of counsel at the guilt-innocence phase of the trial, petitioner’s first ground. This ground should, likewise, be rejected. Prior to commencement of the sentencing hearing, petitioner’s counsel moved the court unsuccessfully to exclude from consideration either by the jury or the court the imposition of death as a punishment for numerous reasons presented to the court in oral argument. (Vol. 10, State TR 1577, 1578, 1579). The state made an opening statement and thereafter the defense chose not to make an opening statement. (Vol. 10, State TR 1594). The state then rested its case after filing into evidence for the jury’s consideration the entire record of the trial proceedings. Petitioner’s counsel then first called a friend of petitioner’s, a local auto body and paint worker, who testified in detail regarding petitioner’s church activities, good character, generosity, counselling of youths at a drug clinic and the effect on petitioner of the birth of his child with brain damage. (Vol. 10, State TR 1595-1605). Petitioner’s brother, a data processing manager, was then called and testified to petitioner’s background, generosity, lack of a prior criminal record, and the effect on petitioner of the birth of his child with brain damage. (Vol. 10, State TR 1605-1608). Finally, petitioner’s counsel called a local bank branch manager who testified to petitioner’s good character, his involvement in youth programs, and his generosity. (Vol. 10, State TR 1609-1611). Counsel then made a very detailed and adequate closing argument to the jury. (Vol. 10, State TR 1614-1616). Upon reviewing the actual performance of counsel at the sentencing hearing and the testimony adduced at the federal habeas evidentiary hearing, it is evident that petitioner received reasonably effective assistance of counsel, the standard required under the Sixth Amendment. It cannot be said that counsel for petitioner rendered ineffective assistance at the sentencing hearing because he did not call certain witnesses who were called by petitioner at the federal habeas evidentiary hearing. Much of this testimony would have been cumulative at the sentencing hearing, and furthermore, the omission of certain testimony at the sentencing hearing which was adduced at the federal habeas evidentiary hearing did not render the sentencing hearing “fundamentally unfair” thereby creating a constitutional infraction of petitioner’s due proc