Full opinion text
ORDER MARQUEZ, District Judge. Petitioner, Willie Lee Richmond [Richmond], filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his conviction for first degree murder and his sentence of death. FACTS AND PROCEDURAL, HISTORY During the late evening hours of August 25, 1973, Richmond and his fifteen year old girlfriend, Faith Erwin , went to the Bird Cage Bar in Tucson. They waited outside for a friend of theirs named Rebecca Corella who was a nude dancer at that bar. Corella came out of the bar with Bernard Crummett. They sat and talked for a while in the front seat of the car that Richmond had driven to the bar. Richmond and Erwin stood nearby in the parking lot. After a short while Richmond joined Corella and Crummett in the car. An argument ensued between Richmond and Crummett because Crummett wanted Erwin to perform an act of prostitution with him. Richmond refused to allow Erwin to perform the act. Corella agreed, however, to prostitute herself with Crummett for twenty dollars. Erwin then joined the other three in the car and Richmond drove them to the hotel on Benson Highway in Tucson where Corella was staying. Corella decided that she was interested in robbing Crummett. Before she tried to rob him, Corella decided to find out how much money Crummett had with him. She had Richmond act as her pimp with Crummett. Crummett paid Corella the twenty dollars in advance of the act. Corella then I left the room to give the money to Richmond who switched the twenty dollar bill for a ten dollar bill he had. He then harassed Crummett about trying to give theih less money. Crummett then opened hi's wallet to pay the additional ten dollar^. When Crummett opened his wallet, it was Corella’s job to observe how much money was in the wallet so that she and Richmond could determine if it would bfe worth their while to rob Crummett. Shle apparently observed what she believed to be a large amount of money and notified Richmond that Crummett was “loaded.” Corella and Crummett then went into one of the bedrooms of the hotel for a period of time. While they were in there, Richmond whispered to Erwin that they intended to rob Crummett but that Erwin should not say anything. Shortly thereafter, Corella and Crummett came out of the bedroom and all four people got back in the car. Richmond again drove the car. They headed toward the west end of 22nd street in Tucson just west of “A” Mountain. When they reached the end of the paved road, which is in a desert area, Richmond stopped the car and got out. Corella, who was in the back seat with Crummett, informed Crummett that they had a flat tire and he should get out and help. Immediately after Crummett exited the car he was struck to the ground by Richmond. He was rendered unconscious. Richmond then walked around to the desert on the passenger side of the car and picked up some large rocks. Richmond stood directly over Crummett and threw the rocks at Crummett’s head. Crummett’s pockets were then turned inside out and his wallet and watch were taken. The record is not clear whether it was Corella or Richmond or both who removed the objects from Crummett. The record indicates, however, that both Corella and Richmond shared in the proceeds from the robbery and Richmond later threw the watch out of the car window. Following the robbery, Corella, Richmond and Erwin reentered the car leaving Crummett in the street. The car ran over Crummett as he laid in the street. The medical testimony at the trial indicates that Crummett was run over twice by the car and because of the direction and nature of the injuries, the car had to run over him two separate times. There was evidence that the body had been dragged under the car for a short distance. However, the injuries were of such a nature that they could not have been caused by the front and rear tires in one pass. The medical evidence also indicated that after the first infliction of injury to Crummett, the direct impact of a car tire to his head, Crummett suffered a massive head injury that caused his death. The second infliction of injury to Crummett was the passing of a car tire over Crummett’s chest. Although the injuries to the chest were substantial, there was no bleeding, internally or externally from these injuries. That indicated to the medical examiner that the two passes of the car occurred at least thirty seconds apart and by the time the second injury occurred, Crummett’s heart had already stopped beating and he had suffered a massive loss of blood. The body was discovered in the street several hours later. Erwin testified at trial that Richmond was driving the car when it ran over Crummett. It was Richmond’s contention that Corella was the one who drove the car. There was evidence at trial that both Richmond and Erwin had used heroin that night prior to going to the Bird Cage Bar and that Erwin was ill with “cotton fever.” Erwin testified that she only heard the car strike Crummett one time. The proceeds from the robbery, other than the watch, was fifty dollars. Shortly thereafter, Richmond was arrested on two other unrelated charges of first degree murder. On September 11, 1973 Richmond, while in jail, was served with the arrest warrant for the first degree murder of Bernard Crummett. He agreed to make a statement to the police officers concerning his involvement in the crime after he was given his Miranda warnings. In that statement, Richmond admitted to being a participant in the robbery and admitted to striking Crummett with the rocks, but he contended that Corella was driving the car. He said that Corella backed the car up and ran over Crummett. She then drove forward and ran over him again. Richmond’s statement was the only evidence indicating that it was their car that struck Crummett the second time as the subsequent medical testimony revealed that the second infliction of the injuries could have occurred anytime between thirty seconds after the first one until the body was found several hours later. Richmond was tried by a jury on charges of first degree murder and robbery. As to the murder charge, the prosecution presented evidence of both premeditated first degree murder and first degree murder under the felony murder rule. Richmond was convicted of both counts. Following a hearing pursuant to A.R.S. § 13-454, on February 27, 1974, Richmond was sentenced to between fifteen and twenty years on the robbery charge and death as to the murder charge. Since the sentence of death was imposed, an automatic appeal was filed directly with the Arizona Supreme Court. During the pendency of the appeal, Richmond filed a petition in the trial court for post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. In support of the petition, Richmond attached affidavits by two persons who stated that they were told by Corella that Corella, not Richmond, was driving the car when it struck Crummett. The petition was denied and an appeal was taken of that decision. The two appeals were consolidated by the Arizona Supreme Court. Both the convictions and sentence of death were affirmed by that court, State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976). The United States Supreme Court denied a petition for a writ of certiorari, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1976). During the pendency of the automatic appeal, Richmond was convicted of one of the prior charges of first degree murder. He received a sentence of life imprisonment on that charge. The homicide in that case occurred before the effective date of the Arizona death sentencing statute so that penalty was not applicable. Richmond was also tried on the third charge of first degree murder and was acquitted of that charge. Richmond then filed a petition for a writ of habeas corpus in federal court challenging both his conviction and his sentence with regard to the killing of Crummett. The District Court upheld the validity of the conviction but invalidated the sentence of death because the state statute as written placed too great a limitation of the Defendant’s ability to present mitigating factors to the sentencing judge and accordingly, violated the Constitution, Richmond v. Cardwell, 450 F.Supp. 519 (D.Ariz.1978). No appeal was taken from that decision. Shortly after the writ of habeas corpus was granted, the Arizona Supreme Court also held that the death sentencing statute was unconstitutional for the same reasons. In the opinion, the court severed the unconstitutional portion of the statute and affirmed the remainder, State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978). Following this decision, the Arizona Supreme Court vacated each conviction and sentence of death for everyone on death row in Arizona, including Richmond, and remanded each case to the Superior Court for re-sentencing, placing no limitations upon the evidence that the Defendant could offer in mitigation. During the pendency of Richmond’s resentencing, the Arizona legislature also amended the death penalty statute to add another statutory mitigating factor of the Defendant’s age at the time the offense was committed. Also while the re-sentencing was pending, Richmond joined a class action petition for a writ of habeas corpus filed by all persons on death row. That action challenged the authority of the Arizona Supreme Court to sever the invalid portion of the statute. The authority of the state supreme court to interpret its own laws was upheld, Knapp v. Cardwell, 513 F.Supp. 4 (D.Ariz.1980) and that decision was affirmed on appeal, Knapp v. Cardwell, 667 F.2d 1253 (9th Cir.1982), cert. denied 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982). Richmond’s hearing with regard to aggravating and mitigating factors under A.R.S. § 13-454 was held on March 11, 12 and 13, 1980. Following the evidentiary hearing, the court found three aggravating factors present and no mitigating factors sufficiently substantial to call for leniency. Richmond was again sentenced to death and again an automatic appeal was filed with the Arizona Supreme Court. During the pendency of the second appeal, Richmond filed a second petition for post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure. In that petition, he challenged the constitutionality of the Arizona death sentencing statute as being unconstitutionally applied against Richmond in a discriminatory manner based on his race (black) and his poverty status. The petition was summarily denied and an appeal of that decision was filed with the Arizona Supreme Court. The two appeals were consolidated. The Supreme Court affirmed the sentence of death by a divided court, State v. Richmond, 136 Ariz. 312, 666 P.2d 57 (1983). Richmond moved for rehearing before the Arizona Supreme Court raising numerous constitutional issues, but that court refused to reconsider its decision. Richmond’s petition for a writ of certiorari to the United States Supreme Court was denied, 464 U.S. 986 (1983). A third petition for post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure was then filed in the trial court. That petition raised many of the same grounds that were presented in the motion for rehearing before the Arizona Supreme Court. This petition was summarily denied and the Arizona Supreme Court denied review of the decision. This action was then filed. Richmond filed this action shortly before his scheduled execution date and initially sought a stay of execution. The petition contained some claims that were not presented to the state courts in a manner that satisfied the exhaustion requirements and accordingly, this court dismissed those allegations. The court then summarily denied the remaining grounds of the petition on their merits and denied the request for a stay of execution. Appeal of this decision was made to the Ninth Circuit Court of Appeals. Richmond’s execution was stayed by that court. Shortly thereafter, the court affirmed this court’s order dismissing the petition in accordance with Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), but vacated that portion of the order ruling on the merits of the exhausted claims. The court remanded the case to this court to set a reasonable period of time for Richmond to amend his petition, Richmond v. Ricketts, 730 F.2d 1318 (9th Cir.1984). The court also vacated its stay of execution as having been rendered moot by the expiration of the warrant of execution. Pursuant to the mandate of the Ninth Circuit, Richmond was directed to file an amended petition with this court. The amended petition was filed on May 21, 1984. The Respondents filed their answer along with twenty-five exhibits which consist of the pertinent state court record. After a review of the record and the allegations of the petition, on November 5, 1984, this court issued an order denying the petition as being partially without merit and as to the remaining parts because the claims constituted an abuse of the writ of habeas corpus. Many of these claims were presented in the initial habeas corpus petition filed in Federal Court in 1978 and several of the others were known at that time but were not presented in the initial petition. Appeal was taken from that decision. Although the state court record consisting of the twenty-five exhibits was designated as a part of the record on appeal to the Ninth Circuit, the clerk of this court neglected to forward those documents to the Ninth Circuit. The Ninth Circuit reversed the decision of this court, holding that this court did not state in its order that it had reviewed the record and in fact could not do so since no record had been presented to this court. The court also held that the doctrine of abuse of the writ and waiver were not applicable in this case as to the challenges to the death sentence itself. The doctrine of abuse of the writ was held validly applied as to the challenges to the underlying conviction. The case was remanded to this court to specify the review of the state court record, to indicate what portions of that record support the conclusions of this court, and to determine if there is a need to hold an evidentiary hearing. Subsequent to the remand of this case by the Ninth Circuit, the clerk of this court discovered its prior error in not forwarding the record to the Court of Appeals. The Court of Appeals was notified of this error and the decision was amended to delete that portion of the order indicating that this court did not have the state court record to review, Richmond v. Ricketts, 774 F.2d 957 (9th Cir.1985). This court has conducted a thorough and exhaustive examination of the pleadings before it, the arguments of counsel, and the state court record submitted to it. There appears to be no reason why this court should not determine these issues on their merits. The court will set forth additional facts and the locations of those facts throughout the remainder of the opinion where appropriate and necessary for the decision of the issues. EXHAUSTION Following the remand from the Ninth Circuit in this matter, the court carefully re-reviewed the petition. This court could not locate several of the issues in the petition in the state court arguments presented in such a manner as to satisfy the exhaustion requirements under 28 U.S.C. § 2254(b) and (c). The court directed each party to brief each of those issues and they have done so. After a careful review of the arguments of Richmond on this matter, it appears that Richmond has presented sufficiently similar issues to all the state courts so as to meet the exhaustion requirements as to some of the claims. As to the remainder of the claims, this court believes that it would be futile to dismiss this action and return Richmond to the state courts to exhaust the other claims. Richmond has already filed three separate petitions for post-conviction relief alleging similar grounds as well as two full appeals to the Arizona Supreme Court. All of the post-conviction petitions were summarily denied. Since this court considers it to be futile to return to state court, and accordingly, the exhaustion requirement has been satisfied because of futility, the next step for this court would ordinarily be to require Richmond to establish cause and prejudice for the failure to present these claims to the state courts. If Richmond could not establish cause and prejudice then he would be deemed to have waived these claims. This court is bound by the remand order of the Ninth Circuit. That court’s discussion of the issues of abuse of the writ and waiver indicate to this court that it cannot find waiver as to any of these issues. The exhaustion requirement is therefore met and this court will rule on the merits of the petition. EVIDENTIARY HEARING The Ninth Circuit’s remand in this case directed this court to determine whether to hold an evidentiary hearing on any of the issues raised in the petition. In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) the Supreme Court directed that a federal court must hold an evidentiary hearing on a habeas corpus case if (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing or (6) for any reason it appears that the trier of fact did not afford the habeas applicant a full and fair fact hearing. If these factors are not present, then it is within the discretion of the district court whether or not to hold an evidentiary hearing, Knaubert v. Goldsmith, 791 F.2d 722 (9th Cir. 1986). This court has carefully reviewed the entire state court record herein. Richmond seeks an evidentiary hearing with regard to ten of the issues presented in the amended petition. For the reasons set forth in the discussion of each of these issues, the court finds that none of the six reasons for conducting a mandatory evidentiary hearing are present. The claims presented as to several of these issues are wholly conclusory and speculative. Since there is no credible factual support for several of these allegations, this court will not conduct a discretionary evidentiary hearing, Bashor v. Risley, 730 F.2d 1228 (9th Cir.1984); see also, Harris v. Pulley, 692 F.2d 1189, 1199 (9th Cir.1982), rev’d on other grounds, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). In addition, as to some of these claims, the court accepts Richmond’s proffer of evidence as being true. Those claims, however, are not sufficient to establish a violation of Richmond’s constitutional rights and will not support the relief he seeks from this court. It is not necessary for this court to conduct an evidentiary hearing with regard to the allegations of this petition. None of the allegations warrant this court exercising its discretion to develop the facts more thoroughly in a discretionary evidentiary hearing. As stated above the court will set forth the specific reasons for denying an evidentiary hearing on each of the issues presented in the petition during the discussion of the merits of each separate claim for relief. The amended petition asserts eighteen separate challenges for relief and numerous separate underlying factual arguments in support of the eighteen claims. Several of the underlying arguments that Richmond has labeled as “facts” are actually constitutional arguments, rather than just supporting facts, which if established would require the granting of the relief that he seeks here. Accordingly, the court will also address the validity of these underlying claims. CHALLENGE TO THE CONVICTION Richmond’s only challenge to his conviction is that there was a lack of proof beyond a reasonable doubt of the crime of first degree murder. This contention is based on several facts. The prosecution presented the case to the jury under both the felony murder rule (because the killing occurred during or immediately after a robbery) and premeditated murder. The instructions to the jury presented both theories. However, no instruction was given that the jury had to reach unanimous agreement as to one theory or the other prior to rendering their verdict. The verdict of the jury did not specify which theory was found. Richmond also contends that there was insufficient evidence to show either theory beyond a reasonable doubt. Neither party seeks an evidentiary hearing on this claim. In the prior order dismissing this action filed November 5, 1984 this court found that any challenge to the conviction, including this claim, was an abuse of the writ of habeas corpus. Richmond had presented the same claim in his first petition for habeas corpus relief in Federal Court and the claim was denied on its merits, Richmond v. Cardwell, 450 F.Supp. 519 (D.Ariz.1978). Richmond did not appeal that adverse ruling. The Ninth Circuit upheld the finding of abuse of the writ on this claim and any other claim to the underlying conviction, Richmond v. Ricketts, 774 F.2d 957 (9th Cir.1985). This court need not rule on the merits of this claim, however, a decision on the merits of the claim is helpful and necessary in reaching a decision on several of the other issues presented in this petition. It also removes all doubt as to the validity of the conviction. The standard of review in a habeas corpus action on this claim is whether there is sufficient evidence presented at trial that a rational trier of fact could have found the Defendant guilty of the crime, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The court has thoroughly examined the transcripts of the trial in this matter, Exhibit volumes 4, 5, 6, and 7. Richmond’s claim of lack of evidence under the felony murder rule is based on his contention that the robbery had already ended by the time the killing occurred. Since the killing of Bernard Crummett occurred while the robbers were leaving the scene, it is Richmond’s contention that the felony murder rule is inapplicable. Under Arizona law, where the escape is part of one continuous felony transaction, then a killing during the course of the escape is covered by the felony murder rule, State v. Richmond, 114 Ariz. 186, 560 P.2d 41, 45 (1976) citing, State v. Adams, 339 Mo. 926, 98 S.W.2d 632 (1936). The testimony of Faith Erwin (volume 6, pages 429 to end, volume 7, pages 440-512) was that Crummett was driven to an undeveloped desert location for the robbery. Richmond knocked Crummett to the ground then threw large rocks, approximately six to eight inches long (volume 7, page 442), at Crummett’s head. Crummett’s pockets were then turned inside out and the robbers returned to their vehicle leaving Crummett lying in the road. As they were driving away, the car ran over Crummett, twice. The taped statement of Richmond was played for the jury during the trial (volume 7, pages 539-549). During the statement, Richmond admitted participating in the robbery and that the car ran over Crummett as they were leaving the scene immediately after the robbery. This is sufficient evidence for a rational finder of fact to conclude, beyond a reasonable doubt, that Crummett died during the commission of the robbery. Since there was sufficient evidence to establish the conviction under the felony murder theory, this court need not, and will not, determine the issue with regard to the theory of premeditated murder. Richmond contends that his constitutional rights were violated because the court failed to instruct the jury that it must reach unanimous agreement as to one theory of first degree murder before it can render its verdict. There is no merit to this claim. The Defendant’s requested jury instructions appear in Volume 9 of the state court record. None of the requested instructions include a request that the jury reach unanimous agreement as to one theory prior to rendering a verdict. Richmond filed an undated transcript of the trial proceedings with this court on August 29, 1984. That transcript includes, among other things, the hearing on the settlement of instructions (pages 603-628), the court’s instructions to the jury (pages 650-668), and the defense objections to the court’s jury instructions made after the instructions were read to the jury (pages 673-680). Although the court in fact did not instruct the jury that it must reach unanimous agreement as to one theory or the other, it did instruct the jury that it must reach unanimous agreement as to the charge of first degree murder (page 667). At two separate times during the trial, the trial court allowed the Defendant to make objections to the jury instructions. Although the second set of objections came after the court instructed the jury, the trial court considered the matter to be timely. At no point in either of these objections did the defense assert any objection to the failure to instruct on the requirement of a unanimous agreement as to the theory of first degree murder. Arizona law recognizes only one crime of first degree murder. 'Where alternative theories of a crime are presented, the prosecutor is not obligated to elect which of those theories should be the sole basis of the jury’s determination. It is also not error to fail to instruct the jury that one theory or act should be found unanimously, State v. Encinas, 132 Ariz. 493, 647 P.2d 624, 627-28 (1982) [multiple theories of murder]; State v. Counterman, 8 Ariz. App. 526, 448 P.2d 96 (1968) [two separate acts of assault on one victim but only one charge of assault, prosecutor need not select one act only]; and State v. Dixon, 127 Ariz. 554, 622 P.2d 501 (Ariz.App.1980) [two theories of theft presented for one charge of theft]. This court has not been cited to a single case holding that the Constitution of the United States requires unanimous agreement as to one of two alternative theories of proof for a single crime. This court’s own research has failed to find any such case. This court concludes that no such constitutional right exists and even if it did, Richmond has waived that right by the failure to make a timely objection to the instructions of the court. Richmond is not entitled to habeas corpus relief as to the underlying conviction. CHALLENGES TO THE DEATH SENTENCE I. UNDUE DELAY IN THE IMPOSITION OF THE SENTENCE. Richmond contends that the delay of six years from the arrest to the sentencing was unconstitutional because it was prejudicial due to the great emotional distress he suffered while confined on death row and the inability to locate three witnesses in mitigation at the resentencing. In the amended petition, Richmond identifies the witnesses as Margaret Fraccaro, Becky Corella, and Robert Richmond. In his supplemental proffer of evidence in support of his motion for an evidentiary hearing on this issue, Richmond identifies another witness known only as “Barbara.” In support of his claim that the delay was unjustified, Richmond asserts that he has always challenged the constitutionality of the death sentence. Since he prevailed in his initial habeas corpus petition, he contends that the state was unjustified, prior to that determination, in relying on the death sentencing statute in his case at all. Richmond seeks an evidentiary hearing on this issue. He seeks to establish prejudice due to the inability to prepare and present mitigating circumstances, the disappearances of the witnesses and the lack of justification for the delay. On January 10, 1986 Richmond filed his supplemental proffer in support of his motion for an evidentiary hearing. In addition to the matters set forth above, he contends that Robert Richmond would have testified concerning Richmond’s character and family background, Fraccaro would have testified as to Corella’s involvement in the crime (rather than Richmond’s) and “Barbara” would also testify to Corella’s involvement in the actual killing. Richmond’s claims with regard to the witness Becky Corella are factually without merit. It is undisputed that Corella was involved in this crime and in fact the robbery was probably her idea. She never testified at trial or at the second sentencing hearing. Contrary to Richmond’s claim, however, she was available to testify at all times. At the time of the resentencing, Richmond’s attorney entered into a stipulation with the prosecutor that the prosecution had provided assistance in locating several witnesses for the defense and in fact had found four witnesses including Becky Corella (volume 18, pages 29-30). She was therefore available to testify at the re-sentencing and the delay caused no prejudice with regard to this witness. Richmond’s other claims under this allegation are legally insufficient to warrant habeas corpus relief and it would be futile to hold an evidentiary hearing on this matter. The court accepts as correct the proffered testimony of the remaining missing witnesses. Initially, the court notes that Richmond does not assert one single mitigating factor that the delay precluded him from presenting and he did not do so before the state courts. There is nothing before this court but speculation that other mitigating circumstances could have been prepared and presented had the delay during the appellate review of this case not occurred. This speculation does not entitle Richmond to the relief he requests. The court also finds the proffered evidence with regard to the missing witnesses to be insufficient to warrant habeas corpus relief. Accepting Richmond’s proffer as correct, Margaret Fraccaro, had she been found, would have testified that Corella had told her that Corella was driving the car when it ran over Crummett. The state court record establishes that Fraccaro had provided an affidavit to that effect just subsequent to the initial sentencing. That affidavit was submitted in support of the initial petition for relief pursuant to Rule 32, Arizona Rules of Criminal Procedure (volume 12, page 1). At the re-sentencing, the judge accepted the affidavit as evidence in mitigation (volume 20, pages 76-77). Richmond does not assert that Fraccaro would have testified as to anything else concerning mitigation. At oral argument before this court, Richmond conceded that she would not have testified as to anything other than what was in the affidavit. At the sentencing hearing, other witnesses testified as to statements made to them by both Corella and the only other eye witness/participant in the robbery, Faith Erwin. Daniel McKinney testified at the re-sentencing hearing that Corella had told him that she was driving the car (volume 19, pages 113-139). This was the same evidence he had presented in his initial affidavit that was also a part of the initial Rule 32 petition. Regina Collins testified both at trial (transcript filed by Richmond on August 29, 1984, pages 629-646) and at the re-sentencing (volume 19, pages 41-71) that Erwin had told her that Corella had been driving the car when it ran over Crummett. Also in the record is the affidavit of the prosecutor indicating that at the time of the trial, Corella was willing to take the stand and accept blame for the killing and that Richmond’s attorney was aware of this fact (volume 12, page 11, attached to the opposition to the initial petition under Rule 32). The separate testimony of Fraccaro would have only added one more person to the list of people that Corella had apparently told that she had been driving. The evidence would have been cumulative. During the defense presentation of mitigating circumstances the rules of evidence are inapplicable. Even though Fraccaro’s testimony would not have been excluded as cumulative, the absence of that testimony does not amount to a constitutional violation. The only statement she had to offer was presented to the court by her affidavit. Richmond is not entitled to habeas corpus relief because Fraccaro could not be located at re-sentencing. The same conclusion is required as to the claim of prejudice from the inability to locate the witness Robert Richmond, the Petitioner’s father. There is absolutely no evidence anywhere in the record as to what testimony he would provide since he neither testified at trial or provided an affidavit. The only proffer of proof as to what he would testify to is to Richmond’s character and family background. It is highly speculative that the testimony would have made any difference. During the re-sentencing hearing, Richmond called numerous witnesses to the stand concerning both his family background and his character both before and after his stay on death row. Among those witnesses were his sister, Ruby Phelps (volume 19, pages 14-28); his brother-in-law, William Phelps (volume 19, pages 28-34); his aunt, Lenore Collins (volume 20, pages 51-54); his sister, Katie Ruth Brown (volume 20, pages 63-68); his mother, Katie Mae Patterson (volume 20, pages 68-73); and his step-father, Arthur Patterson (volume 20, pages 60-62). These witnesses testified about Richmond’s family background, family support, impact upon the family in the event of execution and his change in character during his incarceration. Richmond does not allege and this court’s review of the record does not indicate that any of the absent witnesses were not located due to actions by the prosecutor or anyone else. The mere passage of time and the witnesses apparent mobility resulted in both sides being unable to locate these witnesses. Since it is speculative as to what Robert Richmond would have testified to and the only proffered testimony is that of general family background and character, which would be cumulative, there was no prejudice to Richmond sufficient to warrant habeas corpus relief from the inability to locate this witness. The proffer, as to “Barbara” is the same as with the statements of Fraccaro, Collins, and McKinney. The passage of time precluding the locating of a witness that Richmond did not even know by last name is wholly insufficient to warrant the relief sought here. Richmond’s claim that the delay here was unjustified is without merit. Until a court of competent jurisdiction determines a law to be unconstitutional, the state is justified in relying on and enforcing it unless it is clear that the law will be invalidated based on previous case law. Although Richmond contended from the beginning that the death sentencing statute was invalid, it was not ruled so until Richmond’s petition for writ of habeas corpus was decided in 1978, Richmond v. Cardwell, 450 F.Supp. 519 (D.Ariz.1978). At the time that decision was rendered, the law on that issue was still unclear. Shortly thereafter, the United States Supreme Court clarified the law by its decision of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The Arizona Supreme Court’s decision in Watson followed almost immediately thereafter. There is nothing in Richmond’s proffer warranting the conclusion that any delay here was unjustified or that the statute was so clearly invalid that the use of it was clearly a consitutional violation. The court finds that the delay here was not “unjustified” as a matter of law and no evidentiary hearing is needed on this issue. The court further notes that there has been nothing presented to the court indicating that Richmond has a constitutional right to a speedy sentencing. Although under certain facts such a right could conceivably be found, the facts of this case do not warrant this court’s establishment of such a right. As the United States Supreme Court recognized in a case where eight years lapsed between arrest and sentencing: “Virtually all of the delays of which the petitioner claims occurred in the course of appellate proceedings and resulted either from the actions of the petitioner or from the need to assure careful review of an unusually complex case.” Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 2009-2010 n. 4, 20 L.Ed.2d 1047 (1968). Richmond’s claims concerning the emotional distress he suffered while being confined on death row have nothing to do with regard to his claim of prejudice in his ability to present mitigating factors. Richmond was represented the entire time by counsel. Whether the conditions of confinement on death row cause emotional distress, or not, will not support an invalidation of the death sentence under this allegation of the petition which challenges the delay and prejudice from that delay in the presentation and preparation of mitigating factors. The record reflects that Richmond suffered no prejudice from his inability to locate the witnesses he identifies here. The testimony that Richmond claims would have been presented is cumulative and some of that testimony was presented by affidavit. It is merely speculative whether or not Richmond suffered any inability to present or prepare mitigating circumstances. The delay in this case was not unjustified and was not unconstitutional. Richmond therefore is not entitled to a granting of the writ of habeas corpus based on this allegation. II. USE OF A “PRIOR” CONVICTION AT RE-SENTENCING. Richmond contends that the introduction of a conviction for first degree murder and the sentence of life imprisonment on that conviction, at the time of the re-sentencing violated various of his constitutional rights. Among those asserted rights are the right to be free from double jeopardy and the arbitrariness of the Arizona Supreme Court’s decision on this issue. Neither side requests an evidentiary hearing on this issue. The facts are not in dispute and this is only a legal issue for which no evidentiary hearing is appropriate. As stated in the facts, at the time of his arrest on this charge, Richmond had already been arrested on two other unrelated charges of first degree murder. As to one of those charges, Richmond was acquitted. The trial on the other charge occurred after Richmond was sentenced in this case. On August 9,1974 Richmond was convicted of that charge and sentenced to life imprisonment. It is not disputed that the killing that was the basis of the conviction occurred prior to the murder of Bernard Crummett. In fact, at the time of that murder, the death sentence had not yet become effective so that the sentence of life imprisonment was the only possible sentence. At the initial sentencing hearing, no evidence of this crime was presented as an aggravating factor and the sentencing judge specifically found it not present. At the re-sentencing, however, the prosecution offered evidence of this conviction to establish the aggravating factor in A.R.S. § 13-454 (E)(1) (volume 18, pages 72-75). The court found that aggravating factor to exist (volume 20, pages 116-17). Richmond contends that since the prosecutor could have presented evidence of this crime at the time of the initial sentencing but chose not to do so, the court’s initial determination that this aggravating circumstance was not present would therefore be an acquittal. Richmond contends that to allow the state to introduce this evidence at the re-sentencing violated his rights to be free from double jeopardy. This is based on Richmond’s claim that the re-sentencing occurred over his objection and was not at his request. Richmond is not entitled to relief on this claim. A similar issue to this one was presented to the Ninth Circuit in Knapp v. Cardwell, 667 F.2d 1253, 1264-65 (9th Cir. 1982) in which Richmond was a party. In that case, the Ninth Circuit rejected the claim that the Watson remand for a new hearing on both aggravating and mitigating factors would constitute double jeopardy. The recent Supreme Court decision in Poland v. Arizona, — U.S. —, 106 S.Ct. 1749, 90 L.Ed.2d — (1986) disposes of this issue. Richmond is incorrect in his claim that the prosecution could have presented evidence of the other murder at the initial sentencing hearing. The statute requires a conviction to have occurred prior to the other crime being considered as an aggravating factor. It is undisputed that no conviction occurred on that charge until after the initial sentence of death was imposed. The record also establishes that the prosecutor could not have presented evidence concerning that crime even if he had tried to do so. Very early in the initial sentencing hearing, the court notified the parties that he would not consider any evidence concerning either of the other pending murder charges. The judge stated: Along the same line, I think the record should show that I am disregarding anything concerning two pending murder charges against the defendant. And the police reports and statements in those other two cases; copies of those were made available to the Court by the probation officer during the presentence report. But I returned them to the probation officer without reading them. I have not read matters concerning the other two cases. Anything concerning those two cases will be disregarded at this hearing. Volume 11, page 13. The record indicates that rather than finding that the prosecutor had failed to prove this aggravating circumstance, the court found it absent as a matter of law and refused to consider this evidence at all. Although Richmond contends that he did not ask for the re-sentencing, it was his actions in filing a petition for writ of habeas corpus that resulted in the new hearing. There has never been a determination at any time that the sentence of death was not appropriate. Although there has been some change in the underlying support for the imposition of the death sentence, the sentence itself has not been held inapplicable. Under the holding of the Poland v. Arizona case, supra, that “wiped the slate clean” as to the presentation of this aggravating circumstance. See, also, Staatz v. Dupnik, 789 F.2d 806 (9th Cir.1986). Richmond’s constitutional right to be free from double jeopardy has not been violated. Richmond contends that the decision in this case is inconsistent with other decisions on the same issue by the Arizona Supreme Court. At oral argument on this issue, Richmond conceded that the only case he could cite to the court decided by the Arizona Supreme Court was State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020, 1035-36 (1981). In Ortiz, the prosecutor had offered as an aggravating circumstance a conviction for conspiracy to commit murder. The conviction had been entered simultaneously with the conviction for first degree murder. In fact, there were numerous convictions from one trial and all of the charges arose from one incident involving several persons. The Supreme Court held that the simultaneous conviction could not be used as an aggravating circumstance. The language used in Ortiz is far sweeping, but was narrowed by subsequent decisions, see, State v. Gretzler, 659 P.2d 1, 16 n. 2 (1983). Ortiz is clearly distinguishable from this case. Richmond’s prior conviction stems from an entirely separate incident and the trials were not conducted together. The subsequent limitation on the language in Ortiz removes any inconsistency between the two holdings. This claim is without merit. III. DENIAL OF IMPARTIAL SENTENCING AUTHORITY. Richmond contends that the judge who imposed the sentence of death against him, Richard Roylston, was biased against him. Judge Roylston had presided over the trial and over both the initial sentencing and the re-sentencing. Richmond alleges that Judge Roylston was biased because of the mitigating evidence presented at the first sentencing, because he had heard extrajudicial information that he had been exposed to following the initial sentencing and prior to the remand for new sentencing, and by his knowledge of the appellate process. Richmond seeks an evidentiary hearing in order to establish the “extra-judicial” prejudicial information that Judge Roylston was exposed to. In his Supplemental Proffer of Evidence in support of an evidentiary hearing on this issue, Richmond raises six arguments. He contends that during the period between the first sentencing and the second hearing, there was widespread publicity and public comments, particularly among the legal profession concerning Richmond and other criminal behavior he may have engaged in. Richmond contends that since the judge was under no obligation to refrain from hearing these comments during this period and since the publicity and comments were “sufficiently widespread” that “it is probable that Judge Roylston was exposed to it” and presumably became biased by it. To prevail on a claim of bias by a state judge in a habeas corpus action, the Petitioner must actually establish bias or prejudice on the part of the judge or if “realistically considering the psychological tendencies and human weaknesses, the judge would be unable to hold the proper balance between the state and the accused,” prejudice may be presumed, Dyas v. Lockhart, 705 F.2d 993, 996-97 (8th Cir. 1983). Factors warranting a presumption of prejudice include whether or not the judge has a pecuniary interest in the outcome of the trial or whether the judge has been the target of personal abuse or criticism from one of the parties. Id. see, also, Aetna Life Insurance Co. v. Lavoie, — U.S. —, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986). These factors are not present here and the allegations of bias are not of such a level to warrant the presumption of bias. To prevail here, Richmond must establish actual bias or prejudice. Richmond’s contention of Judge Roylston’s exposure to “extra-judicial” information does not warrant any relief from this court nor does it require an evidentiary hearing. The sole contention in support of this claim is that publicity and public comments were so widespread that Judge Roylston “probably” was exposed to it. There are no facts offered to show, in fact, Judge Roylston was exposed to any information. In addition, Richmond has not presented to the court one single piece of evidence concerning what the prejudicial publicity and comments were. Richmond conceded at oral argument before this court that it is only speculative whether or not Judge Roylston was exposed to any “extra-judicial” information at all. He stated that he has no evidence of actual exposure to any such information. This court has nothing before it to even indicate bias here except Richmond’s unsupported speculative and. conclusory allegation. This is wholly inadequate to support granting of an evidentiary hearing on this claim, Bashor v. Risley, 730 F.2d 1228 (9th Cir.1984). See, also, Harris v. Pulley, 692 F.2d 1189, 1199 (9th Cir.1982). An evidentiary hearing in a habeas corpus case is for the purpose of determining whether any constitutional rights have been violated, not for speculation or fishing expeditions. Richmond has failed to present any support for this claim and he is not entitled to relief based on it. Richmond’s next contention is that Judge Roylston was biased against him because of the mitigating evidence offered at the initial sentencing. The mitigating evidence presented at the first sentencing (volume 11) was testimony by psychiatrists that Richmond was a sociopath, a person who understands right from wrong but acts in a manner consistent with his immediate needs regardless of whether it is right or wrong and that he does not learn from experience. Other statements of his character that were not very complimentary were made by the mitigation witnesses. In July, 1979, prior to the re-sentencing, Richmond filed a motion to disqualify Judge Roylston based upon the evidence offered in mitigation at the initial sentencing (volume 21). That motion was presented to Presiding Judge Harry Gin. On August 6, 1979, Judge Gin heard the arguments based on that motion (volume 15). Counsel at that hearing argued that to allow Judge Roylston to conduct the second sentencing after having been exposed to the prior evidence would preclude the judge from being able to decide whether Richmond’s character had changed during incarceration. The prosecutor argued that the evidence may be presented to the court no matter what judge presided over the hearing, since it would be rebuttal evidence to Richmond’s claim of character change. Judge Gin denied the motion by minute entry filed August 13, 1979 (volume 21) holding that Richmond had failed to establish bias. At the hearing before Judge Gin, Richmond did not seek to have any testimony heard on this matter. Rather, he relied solely on his argument that the re-sentencing would be influenced by the previous evidence offered by Richmond. The decision of Judge Gin on this matter was affirmed on appeal, State v. Richmond, 136 Ariz. 312, 666 P.2d 57, 61-62 (1983). The court noted that at the time of the re-sentencing, A.R.S. § 13-454(A) required the judge who presided over the trial to conduct the sentencing. The court also agreed with the prosecutor that any judge who conducted the re-sentencing would be exposed to this same testimony and therefore, Richmond had failed to establish bias. Richmond presents nothing further than what was already presented to the state courts and does not request an evidentiary hearing to present further information on this issue. This court has reviewed the transcript of the initial sentencing hearing, the pleadings concerning the motion to disqualify the judge, the transcript of the hearing on that motion and the transcripts of the re-sentencing. The evidence presented at the first sentencing hearing, in mitigation, certainly did not cast Richmond in a good light unless that information is considered for the purpose in which it was offered, as an attempt to meet A.R.S. § 13-454(F)(1) [capacity to conform his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to prosecution]. Nevertheless, this court’s review of the re-sentencing record before it requires the conclusion that this evidence played no part in Judge Roylston’s imposition of the sentence of death. Merely being exposed to unfavorable information, five years prior to conducting a re-sentencing, in the same case, does not warrant a finding that Judge Roylston was biased or prejudiced against Richmond. Richmond’s next claim under this allegation is that the judge’s knowledge of the appellate process in this case made him biased. Apparently, this contention is that since the prior conviction was reversed Judge Roylston would be biased since it was his decision that was reversed. There has been nothing cited in the record, and this court’s review of the record could not locate, any animosity by Judge Roylston against Richmond based on the reversal of the conviction or anything else. The conviction in this case was reversed because the law under which the sentencing was conducted was declared to be unconstitutional. Judge Roylston’s conduct at the initial sentencing were not responsible for the reversal. For this court to hold that mere reversal of a decision creates bias by the judge on remand would require the conclusion that every judge in this country has, at one time or another, presided over a proceeding improperly because of his bias. The constitution and the facts of this case do not warrant such a conclusion. A judge is presumed to be honest and act with integrity, Dyas v. Lockhart, 705 F.2d 993, 997 (8th Cir.1983); Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). None of the claims presented under this allegation are sufficient to overcome this presumption. Richmond is not entitled to relief on this claim. IV. LACK OF NOTICE OF AGGRAVATION. Richmond contends that his fifth and sixth amendment rights were violated when the prosecutor failed to give notice of what aggravating circumstances he would rely on at sentencing. He contends that since prior convictions were used, Rule 19.2 of the Arizona Rules of Procedure required disclosure as well. In addition, he contends that since there was no clear definition of one aggravating factor or notice of what kind of prior convictions could be used then Richmond was unprepared to rebut this evidence. He seeks an evidentiary hearing on this allegation to establish the prejudice he suffered in the presentation of rebuttal evidence. Richmond has not identified to this court any rebuttal evidence that was not presented at the state court re-sentencing hearing due to the lack of notice of the aggravating circumstances. The request for an evidentiary hearing is based solely on the conclusory allegations of the petition and must be denied. Respondents address the merits of this claim as to both the initial sentencing and the re-sentencing. The initial sentence of death was set aside and any claims presented under this allegation as to the invalidity of the initial sentencing are moot. That also applies to the claim as to the “cruel, heinous or depraved” aggravating circumstance. Richmond was one of the first people sentenced under the current Arizona death sentencing statute and at the time of the initial sentencing there had been no interpretation or definition of that factor. However, at the time of the re-sentencing there was substantial case law interpreting the limits of that provision. Richmond is therefore not entitled to relief on this basis. Richmond’s assertion concerning the failure to comply with Rule 19.2 does not support the granting of relief here. A failure of the state court to follow its own rules will support habeas corpus relief only if it is of such a magnitude as to result in a denial of federal due process, Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir.1981). The mere failure to comply with the rule does not warrant relief separately from the constitutional challenge presented here. The court also notes that Richmond does not specify whether the Rule he cites is under the Criminal or Civil Procedural Rules. This court has examined both and can find no rule requiring disclosure in a sentencing hearing. Rule 19.2 of the Criminal Rules discusses the right of the Defendant to be present at all stages of the trial. Rules 15.1(a)(5) and 19.1(b) discuss prior convictions but not for the proposition that Richmond asserts to this court. This court has been unable to find the rule that Richmond refers to after a thorough review of the Arizona procedural rules. It must be concluded that no such rule exists. This court’s review of the state court record also requires the finding that Richmond’s claim that he did not receive notice of the aggravating factors to be factually without merit. At the initial sentencing hearing (volume 11), the prosecutor offered evidence of aggravating circumstances A.R.S. § 13-454(E)(2), (E)(5) and (E)(6). These concern prior convictions for a crime involving harm or threat of harm to another, commission of the murder in consideration for anything of pecuniary gain, and commission of the crime in an “especially cruel, heinous or depraved” manner, respectively. The court found factors (E)(2) and (E)(6) present. The Arizona Supreme Court affirmed that conclusion on appeal, State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976). At the re-sentencing (volume 18), the prosecutor asserted the same aggravating circumstances and the same evidence against Richmond as to those circumstances. The only change was that the prosecutor also alleged and the court found aggravating circumstance (E)(1), that the defendant had previously been convicted of an offense where a sentence of life imprisonment could have been imposed. This pertained to Richmond’s subsequent conviction of the first degree murder that occurred prior to the murder of Bernard Crummett. The record also reflects a direct indication that Richmond’s attorney at re-sentencing had been notified of what aggravating circumstances would be presented. At the beginning of the sentencing, defense counsel objected to the entire proceedings. He then made the following statement concerning his ability to prepare for the hearing. “I might also say that after having been told by Mr. Howard [the prosecutor] that he wishes to present as an aggravating factor a prior conviction from Case No. A-17969 [a kidnapping involving the use of a knife], that I went to the court files and found that the case was on microfilm.” (volume 18, page 23). The prosecutor presented evidence under circumstance (E)(2) involving the kidnapping conviction. The prosecutor at the re-sentencing here asked the victim in that case if he could identify Richmond and the defense counsel objected because at the underlying trial on the charge, the witness’ identification had been suppressed because of an unduly suggestive pre-trial procedure (volume 18, pages 56-57). Counsel also contended that the introduction of the subsequent conviction for the prior offense was invalid at the re-sentencing. At that time he argued that the case of State v. Valencia, 124 Ariz. 139, 602 P.2d 807 (1979), was incorrect. Valencia was the state court decision which upheld the validity of introducing subsequent convictions during re-sentencings. Richmond’s attorney was therefore aware of the Valencia holding at the time of the re-sentencing in this matter and knew of its impact on this case. The Ninth Circuit upheld the validity of this ruling in Knapp v. Cardwell, 667 F.2d 1253, 1265 (9th Cir. 1982), the class action suit in which Richmond was a party. The court also notes that at the time of the re-sentencing and at the time of the initial sentencing, that the Arizona death penalty statute, A.R.S. § 13-454(E) provided for a total of only six specific aggravating circumstances. This court finds that based on these facts, Richmond had sufficient notice of the factors that would be introduced as aggravating circumstances so as to satisfy the requirements of the constitution. There is no merit to this allegation. V. EXCESSIVENESS OF PETITIONER’S DEATH SENTENCE. Richmond contends that the death penalty is inappropriate in this case because there was no finding by the jury that Richmond killed or intended to kill the victim and there was insufficient evidence to establish this at trial. Richmond further contends that evidence that he did not kill was held to be irrelevant to the sentencing and rejected by the court as a mitigating factor. Neither side has requested an evidentiary hearing on this issue. Other than a thorough review of the state court record, there is no right to an evidentiary hearing on this allegation. Richmond is correct that there was no finding by the jury that he killed or intended to kill Bernard Crummett. Since the case was presented to the jury under both premeditated murder and the felony-murder rule, the jury’s verdict of guilty could be as to either theory. Richmond is not entitled to relief on this claim, however. The Supreme Court held in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), that the sentence of death was inappropriate unless there was a finding that the particular defendant did kill, attempted to kill, intended that a killing take place or that lethal force would be employed. The Supreme Court recently refined that holding in Cabana v. Bullock, — U.S. —, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). The court held that the federal courts must carefully examine the state court record to determine if there was a finding by any state court that would satisfy the Enmund requirement. That determination need not be made by the jury and if such a finding was made, it is entitled to the presumption of correctness, Id. at 698. This court has carefully reviewed the state court record in this matter. The Arizona Supreme Court held that the trial court was correct in its conclusion that Richmond did kill Crummett and the Supreme Court also found that Richmond intended to take a life, State v. Richmond, 136 Ariz. 31