Full opinion text
ORDER DIMMICK, District Judge. Petitioner, in addition to filing a memorandum in opposition to respondent's motion for summary judgment, has filed separate motions for: (1) additional discovery, (2) expansion of the record, and (3) an evidentiary hearing on certain issues raised in his request for habeas corpus relief. On March 13, 1991, the Court heard oral argument on these motions and on the question of whether certain claims made by the petitioner in his habeas corpus petition are precluded from federal court review. The Court has reviewed the memoranda and affidavits submitted by counsel on these issues and hereby grants petitioner’s motions for an evidentiary hearing, for discovery, and to expand the record as outlined below. The Court declines to grant partial summary judgment in favor of the respondent on the procedural bar issue. DISCUSSION A. Procedural Bar Respondent requests that the Court decline to consider certain claims raised in the habeas petition on the grounds that they are precluded from federal court review by the “procedural bar” doctrine. The essential requirements of the procedural bar doctrine are well established and undisputed by the parties. Briefly, a federal habeas corpus court may not review a federal habeas corpus petitioner’s federal claims where the state court has refused to rule on the merits of the federal claims because of an independent and adequate state procedural rule—absent cause for and prejudice from default. See, e.g., Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). In order to bar federal habeas corpus review, the state procedural rule must be a “clearly announced rule that state courts apply evenhandedly to dispose of similar claims.” County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979); Kreck v. Spalding, 721 F.2d 1229, 1234 (9th Cir.1983). In In re Jeffries, 114 Wash.2d 485, 789 P.2d 731 (1990) (“Jeffries IV”), the Washington State Supreme Court declined to consider five issues raised by the petitioner in his third personal restraint petition. The Supreme Court held that raising these issues constituted an “abuse of the writ” because the petitioner could have, but did not, raise those issues in a previous petition. The precluded claims were: (6.5) Newly Discovered Evidence (6.6) Prejudicial Testimony (7.1) Mitigating Circumstances (7.2) “Having in Mind the Crime” (7.7) Waiver of Right to Counsel At issue in the present action is whether the Supreme Court’s decision not to consider these issues constituted the creation of a new procedural rule, a rule that was not “clearly announced” before. The dispute here centers on the language of Washington Rule of Appellate Procedure 16.4(d), which states: “No more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown.” In In re Haverty, 101 Wash.2d 498, 503, 681 P.2d 835 (1984), the Washington Supreme Court explicitly adopted a new rule interpreting RAP 16.4(d). In doing so, the Court overruled the holding of a previous case, In re Haynes, 95 Wash.2d 648, 628 P.2d 809 (1981), and adopted the analysis of a federal case, Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The new interpretation of RAP 16.4(d), adopted by the Court in Haverty stated that: [Tjhere were only two limited instances in which successive petitions could be dismissed: (1) where the prior application had been denied on “grounds previously heard and determined”; or (2) “if there had been an abuse of the writ or motion remedy.” (quoting Sanders, 373 U.S. at 15, 17, 83 S.Ct. at 1077, 1078). The Court then defined the terms “heard and determined”— the standard for the first ground for dismissal. However, the Court neither addressed nor defined the second instance warranting dismissal—the abuse of the writ standard. The Supreme Court did not consider this issue again until Jeffries’ third personal restraint petition was filed (Jeffries IV). The Supreme Court noted that Jeffries’ third personal restraint petition contained a mixture of “renewed” and “new” claims. As regards the renewed claims, the Court applied the previously defined standard for dismissing “heard and determined” claims and noted that any such claims would not be considered except for good cause shown. Applying this standard, the Court dismissed four of the five renewed claims submitted by the petitioner. The one renewed claim that was considered—the proportionality review of the sentence—was dismissed on the merits. Turning to the “new” issues raised in the personal restraint petition, the Court stated that: As noted above, we will not consider even a “new” issue raised in a successive petition if the petitioner abuses the writ by raising that issue'. In re Haverty (following Sanders v. United States). (Footnotes omitted.) The Court went on to say: We hold only that, if the petitioner was represented by counsel throughout the post conviction proceedings, it is an abuse of the writ for him or her to raise, in a successive petition, a new issue that was “available but not relied upon in a prior petition.” Applying this test, the Court dismissed each of petitioner’s five new claims as an abuse of the writ. Thus, prior to Jeffries IV, the Supreme Court in Haverty had defined what it meant to raise a “similar” issue under RAP 16.4(d), but had not defined the effect of raising a “new” issue in a personal restraint petition. All that had been clearly stated concerning new issues was that it was improper to raise issues that “abused the writ.” What constituted such abuse was unclear until the Supreme Court in Jeffries IV defined at least one aspect of abuse as failing to raise an issue that could have been raised previously. Given this sequence of events, this Court does not believe that it is reasonable to conclude that there was a “clearly announced” procedural rule in Washington State concerning the raising of new issues in personal restraint petitions. Rather, the scope of the rule in question was defined within the context of the Court’s decision not to consider certain issues raised by the petitioner. The conclusion that there is no clearly established procedural rule interpreting RAP 16.4(d) is supported by an unpublished Order recently issued by the Washington Supreme Court in In re Campbell, No. 57406 (March 21, 1991). In that Order, the Supreme Court considered the merits of issues raised in a personal restraint petition. The State had contended that, pursuant to Haverty, Taylor, and Jeffries IV, consideration of these claims was procedurally barred. In response, the Supreme Court stated that “[w]hile the State’s position may be well-taken, the court nonetheless has reviewed, and hereby rejects, each of Mr. Campbell’s claims on the merits.” Id. at 2. The Supreme Court’s decision in Campbell to ignore the effect of the procedural bar rule indicates either (1) that the Washington Supreme Court does not believe there is a settled procedural bar rule, or (2) that the rule is not evenly enforced—precluding review in some cases but not in others. In either case, it cannot be said that there is a clearly announced and fairly applied procedural rule concerning new issues raised in personal restraint petitions. Because there was no clearly announced procedural rule that precluded the state court from considering the five new issues outlined above, the Court concludes that the procedural bar doctrine is not controlling in the present case. The Court will therefore consider the constitutional issues raised by the petitioner in claims 6.5, 6.6, 7.1, 7.2, and 7.7. B. Petitioner’s Motion for an Evidentiary Hearing Petitioner requests an evidentiary hearing on the following issues: failure to change venue/jury misconduct (6.1); newly discovered evidence (6.5); prejudicial testimony—petitioner in jail (6.6); weapons unrelated to charged offense (6.7); ineffective assistance of counsel (7.6); waiver of right to counsel (7.7); trial judge report (7.10). The respondent agrees that an evidentiary hearing is required on claim 6.1 (jury misconduct), but objects to an evidentiary hearing on the remaining claims. Respondent concedes that the decision as to whether an evidentiary hearing is appropriate is a decision for the Court. After a preliminary review of the memoranda, affidavits, and the record of the state court proceedings, the Court concludes that an evidentiary hearing on the issues requested by petitioner is appropriate. THE COURT INTENDS THAT THIS EVIDENTIARY HEARING BE NARROWLY FOCUSED. The Court is not interested in relitigating factual issues that have been properly determined at the state court level. Any attempt by the petitioner to expand the hearing beyond the above listed collateral attacks will be denied. In addition, the restrictions on discovery—discussed below—are intended to limit extraneous material from being introduced at the hearing. At this time, the Court is primarily interested in claims 6.1 (failure to change venue/jury misconduct); 6.5 (newly discovered evidence); and 7.7 (waiver of right to counsel). The petitioner is, of course, free to direct his energies where he believes it most fruitful. The Court will set aside one full day for an evidentiary hearing on the above claims. Additional time will not be granted petitioner absent exceptional circumstances. The hearing is scheduled for Wednesday, June 26, 1991 at 9 a.m. No pre-hearing briefs need be submitted. C. Petitioner’s Motion for Discovery Petitioner has made a broad and far-reaching request for additional discovery. The request includes, but is not limited to, the following: all exculpatory evidence known to the respondent; all information obtained during the original criminal investigation; all information concerning various interviews conducted by the state; any information relating to the criminal record of the victims; all information relating to the possible removal of evidence from the scene of the crime; all information relating to the arrest and incarceration of Dan Helland, a State witness; and information relating to contacts between the trial bailiff and the prosecution, jurors or media. In addition, the petitioner requests the opportunity to conduct the depositions of certain FBI agents, Clallam County detectives, Wenatchee Sheriff Department officers, the trial bailiff, legal/psychiatric experts obtained by the respondent, and all of the jurors and alternate jurors in this case. The decision to permit discovery for good cause shown is at the discretion of the Court. Rule 6(a) of the Rules Governing Section 2254 Cases. The Court is willing to permit limited discovery as it relates to those issues to be considered at the evidentiary hearing. However, any such discovery is to be limited to that information which the petitioner is unable to obtain through other means (i.e., there need be no depositions of individuals who are willing and able to speak to petitioner’s counsel). Discovery beyond the scope of the scheduled evidentiary hearing is premature. Respondent’s motion for summary judgment is necessarily predicated upon the assumption that there are no disputed material facts. Summary judgment in favor of the respondent will not be appropriate on any issue properly before the Court for which petitioner can demonstrate that there is factual uncertainty concerning material issues. If respondent’s motion for summary judgment is denied, then additional discovery may be appropriate. In order to expedite the limited discovery permitted, the Court directs counsel for the respondent and petitioner to confer and agree on the broad outline that discovery will take. The parties are to agree as to what information is relevant to the issues to be heard at the hearing. In addition, respondent may be able to provide the petitioner with certain information without the necessity of formal discovery. A joint status report summarizing the agreed upon scope of discovery, and noting any obvious areas of disagreement, is to be submitted to the Court within twenty (20) days of the date of this Order. Upon receipt of this status report, the Court will review the areas of dispute and, if necessary, resolve them. D. Petitioner’s Motion for Expansion of the Record Petitioner moves to expand the record by including the following: all exhibits admitted at trial; certain newspapers containing articles relating to this case; all affidavits submitted by petitioner and attached to petitioner’s response to the motion for summary judgment; all information and materials obtained through discovery; all guilt and penalty phase instructions requested by petitioner or respondent; and any other material the Court deems necessary. Expansion of the record is at the discretion of this Court. Rule 7(a) of the Rules Governing Section 2254 Cases. At oral argument on the pending motions, counsel for petitioner stated that the request to expand the record would be satisfied by an evidentiary hearing at which exhibits were accepted. Petitioner may submit exhibits that are relevant to the issues to be considered at the evidentiary hearing. In light of the considerable record already presented, the Court declines to expand the record further. If, after reviewing the motion for summary judgment, it appears that the record is insufficient, then the Court will request that the parties provide any additional information that is required. CONCLUSION THEREFORE, respondent’s request that the Court decline to consider claims 6.5, 6.6, 7.1, 7.2, and 7.7 on the grounds that they are procedurally barred is DENIED. Petitioner’s motions for an evidentiary hearing, for discovery, and to expand the record are GRANTED IN PART as outlined above. An evidentiary hearing is hereby scheduled for Wednesday June 26, 1991. Counsel for petitioner and respondent are hereby ORDERED to confer regarding any necessary discovery. The parties are to submit a discovery status report within twenty (20) days of the date of this Order. ON MOTION FOR SUMMARY JUDGMENT THIS MATTER comes before the Court on the motion of respondent James Blodgett for summary judgment. The underlying action is a petition for a writ of habeas corpus filed by Patrick James Jeffries. Jeffries contends that his custody and sentence of death are contrary to the Constitution of the United States. The Court has considered each of the eighteen claims raised in the petition and finds them without merit. The Court therefore grants respondent’s motion for summary judgment, denies the petition for a writ of habeas corpus, and dissolves its previously entered stay of execution. PROCEDURAL BACKGROUND A jury found petitioner Jeffries guilty of two counts of aggravated first degree murder on November 5, 1983. The jury also returned a special verdict finding that the state had proven two aggravating factors beyond a reasonable doubt. The aggravating circumstances were: (1) that the murders had been committed to conceal the commission of a crime or to protect or conceal the identity a person committing a crime, and (2) that the murders were part of a common scheme or plan or the result of a single act of the defendant. A special sentencing proceeding (the “penalty phase”) to determine whether the death penalty should be imposed was conducted on November 7, 1983. The jury returned a verdict that there were not sufficient mitigating circumstances to merit leniency. Jeffries was sentenced to death by the Honorable Grant Meiner on November 18, 1983. Both the guilt and penalty phase of the trial were conducted in Clallam County Superior Court. Petitioner was represented by Walter Sowa and Mark Mestel. The prosecuting attorney was David Bruneau. Jeffries’ direct appeal to the Washington Supreme Court was denied on March 26, 1986. State v. Jeffries, 105 Wash.2d 398, 717 P.2d 722 (1986) (“Jeffries I”). A motion for reconsideration was denied by order dated June 3, 1986. Jeffries’ application to the United States Supreme Court for a writ of certiorari was denied. Jeffries was represented by Brian Phillips on appeal. The state was represented by Bruneau and Christopher Melly. A death warrant was issued by Judge Meiner and stayed by the Washington Supreme Court. Jeffries then filed a personal restraint petition with the Washington Supreme Court on December 18, 1985. The petition was rejected by the Washington Supreme Court on July 25, 1986 in an opinion not reported in the Washington Reports. In re Jeffries, 722 P.2d 99 (1986) ("Jeffries II”). Jeffries’ second personal restraint petition was argued to the Washington Supreme Court on September 15, 1987. The Washington Supreme Court denied this petition on April 7, 1988. In re Jeffries, 110 Wash.2d 326, 752 P.2d 1338 (1988) (“Jeffries III”). The Washington Supreme Court stayed its mandate for the decision in Jeffries III pending a petition for certiorari to the United States Supreme Court. The petition for certiorari was denied. On March 21, 1989, Jeffries applied for a stay of execution and a petition for writ of habeas corpus in the United States District Court for the Western District of Washington. The case was assigned to this Court (Judge Dimmick) and a hearing was held on March 23, 1989. Jeffries was represented by Brian Phillips and Stephanie Ross. Respondent was represented by Kenneth Eikenberry (Attorney General), Linda Dalton, and John Jones. The Court entered an order granting a stay of execution on March 23, 1989. Respondent filed a motion to dismiss for failure to exhaust state court remedies on April 21, 1989. Subsequently, Jeffries filed a third personal restraint petition with the Washington Supreme Court on May 12, 1989. On June 1, 1989, the Court dismissed the habeas corpus petition without prejudice and dissolved the stay of execution. Jeffries’ third personal restrain petition was considered by the Washington Supreme Court at an en banc administrative conference on November 30, 1989. The petition was denied on April 5, 1990. In re Jeffries, 114 Wash.2d 485, 789 P.2d 731 (1990) (“Jeffries IV”). A death warrant was issued on May 24, 1990 by the Clallam County Superior Court. Jeffries filed a petition for writ of habeas corpus on July 12, 1990 in the United States District Court for the Western District of Washington. The petition was again assigned to this Court. Brian Phillips and Stephanie Ross were appointed by the Court to represent Jeffries. Respondent was represented by Kenneth Eikenberry, Linda Dalton, and Paul Weisser. After a hearing on July 6, 1990, the Court entered an order staying execution. On July 20, 1990, respondent filed a motion to dismiss for failure to exhaust state remedies. After setting a briefing schedule on this motion, the Court heard oral argument on September 10, 1990. At the hearing Jeffries agreed to file an amended petition for a writ of habeas corpus, deleting those claims that had not been properly presented to the state courts. The amended petition was filed on September 18, 1990. A briefing schedule for respondent’s dispositive motion was established on October 19, 1990. Respondent filed the instant motion for summary judgment on November 9, 1990. Jeffries filed a motion to compel answers to admit or deny each allegation of the amended petition and a motion for an extension of time for filing a response to the motion for summary judgment on December 13, 1990. On December 26, 1990, the Court denied Jeffries’ motion to compel, finding that respondent had adequately complied with Rules 4 and 5 of the Rules Governing Section 2254 Cases. The Court granted Jeffries a one-month extension in which to file his response. On January 25, 1991, Jeffries filed the following motions: (1) for discovery, (2) for expansion of the state court record, and (3) for an evidentiary hearing. On April 4, 1991, the Court heard oral argument on these three motions and on the “procedural bar” issue raised in the motion for summary judgment. On April 15, 1991, the Court ruled that the procedural bar doctrine does not require the dismissal of claims 6.5, 6.6, 7.1, 7.2 and 7.7 of the amended petition for a writ of habeas corpus. The Court ordered an evidentiary hearing on claims 6.1, 6.5, 6.6, 6.7, 7.6, 7.7 and 7.10. The Court declined to further expand the state court record. The parties were instructed to file an outline of the pre-hearing discovery that they intended to conduct. By order dated May 20, 1991, the Court resolved several disputes that had arisen between the parties concerning the scope of the discovery being conducted in preparation for the evidentiary hearing. By order dated June 11, 1991, the Court permitted counsel for the respondent to depose Jeffries (with certain restrictions) as well as Jeffries’ original trial counsel. Respondent’s request for production of trial counsel’s entire work file was denied. On June 26, 1991, an evidentiary hearing was held at which both petitioner and respondent had an opportunity to submit evidence on the following claims: failure to change venue/jury misconduct (6.1); newly discovered evidence (6.5); prejudicial testimony—petitioner in jail (6.6); weapons unrelated to charged offense (6.7); ineffective assistance of counsel (7.6); waiver of right to counsel (7.7); trial judge report (7.10). Petitioner Jeffries was present at the evidentiary hearing, but did not testify. The hearing lasted for two days. At the conclusion of the evidentiary hearing, the Court ruled on certain oral motions that had been made by the parties. These rulings were memorialized in an order dated June 27, 1991. Respondent’s request for reconsideration of the procedural bar question was denied. Petitioner’s request for an opportunity to conduct a mental health exam to determine his mental state at the time of the penalty phase of the trial was denied. Petitioner’s request to introduce the testimony of certain experts on the duty of counsel to present mitigating evidence and as an aid in determining the likely jury interpretation of certain jury instructions was also denied. Finally, a date for oral argument on the summary judgment motion was established, as well as deadlines for supplementing the testimony of the evidentiary hearing (a procedure which had been agreed to by the parties) and for filing post-hearing briefs. Oral argument on respondent’s motion for summary judgment was originally scheduled for July 31, 1991. At the request of petitioner’s counsel, argument was continued until August 13, 1991. STIPULATION AS TO THE STATE RECORD The parties have stipulated that volumes 1 through 22 of the state court record are complete and authentic. The state record has been transferred to the record in this action and, with the addition of the evidence introduced at the evidentiary hearing, is the basis for this Court’s factual findings. FACTUAL BACKGROUND This is a summary of the factual background to the crime for which Jeffries was convicted and an outline of the evidence presented at trial. Additional factual details are presented in the analysis of each specific claim for relief. Petitioner Patrick James Jeffries is a Canadian citizen. In January of 1983, Jeffries became a houseguest at the home of Phillip and Inez Skiff in Clallam County, Washington. The Skiffs allowed Jeffries to stay with them and permitted him to use their wood shop to continue his interest in wood carving. Although Jeffries and the Skiffs appeared to have gotten along well, the relationship may have begun to sour in early March, 1983. Phillip Skiff was last seen, wearing a blue jumpsuit, on the morning of March 19, 1983 by Alfred and Frieda Opdahl, neighbors of the Skiffs. Inez Skiff was last seen, wearing her gardening clothes, at 1:30 p.m. on the same day by Frieda Opdahl. When their bodies were later unearthed, Phillip Skiff was wearing a blue jumpsuit and Inez Skiff was wearing her gardening clothes. During the day of March 19, 1983, Jeffries was seen several times by the Opdahls on the Skiffs’ tractor in a field near the Skiff residence close to where the body of Phillip Skiff was found. He had never been observed by the Opdahls operating the tractor prior to that day. Sometime later that day, Frieda Opdahl went to the Skiff residence with her grandchildren and some other children so that they could play on the Skiffs’ trampoline. At this time Jeffries gave Frieda conflicting accounts as to the whereabouts of Phillip Skiff. First Jeffries said that she might find him down by the creek on the Skiff property. When Frieda and the children began to go down to the creek, Jeffries said that Phillip was getting more cedar from the field south of the Skiff residence. Frieda and the children went down to the creek, but did not meet Phillip Skiff. When they returned to the Skiff residence, Jeffries told Frieda that the Skiffs were going away for a couple of days with some friends and after that they would be leaving on a more extended trip. Petitioner also showed Frieda, her daughter, and her grandchildren some of his carvings in the woodshop. In the early afternoon of March 19, 1983, a Rex Elliot went to the field south of the Skiff residence to dump some brush. Elliot saw Jeffries on the tractor. Jeffries helped Elliot unload two loads of brush. Jeffries identified himself as the Skiffs’ son and stated that the Skiffs were thinking of moving. Jeffries invited Elliot and his wife into the house. Jeffries stated that “they were liquidating some property” and discussed the possible sale of a television set. Rex Elliot noticed a .22 caliber Colt Woodsman on the kitchen counter which Jeffries said he had been cleaning. Elliot did not smell any cleaning solvent. Elliot also noticed an empty shell cartridge lying on the floor. When asked when the Skiffs would be returning, Jeffries replied that they would be back in a few minutes and asked if the Elliots wanted to wait. The Elliots declined to stay and departed. On Monday, March 21, at 9 a.m., Jeffries told Alfred Opdahl that the Skiffs had called and told him they were in Seattle, would be returning in a few days, and then leaving again. Later that day, Jeffries attempted to sell 2.5 ounces of placer gold and two gold coins to a gold dealer in Port Angeles. The dealer was willing to buy but, when Jeffries was unable to produce any identification, refused to consummate the transaction. At approximately 5 p.m. on that same day, Frieda Opdahl telephoned the Skiff residence. A man whose voice she did not recognize answered the phone. During the period from March 19 to March 22, 1983, Jeffries was seen at several locations (pool hall, tavern, restaurant, bar, etc.) in Port Angeles. He was observed as having several hundred dollars in American and Canadian currency. Ten days before her death, Inez Skiff withdrew over $30,000 in Canadian currency from a British Columbia Bank. This money has never been found. On Tuesday, March 22, defendant went to the Opdahls’ house and asked directions to Bellingham, stating that he intended to meet someone there. This was the last time petitioner was seen by the Opdahls. Jeffries left the Skiff residence on March 22 or 23, taking with him the Skiffs’ pickup truck, portable television, chain saw, food, liquor, placer gold, coins, and other small articles. He traveled to Wenatchee where he sold some of the gold and coins. While in Wenatchee Jeffries became friends with Dan Helland and the two traveled together for several days. During this period, Jeffries met briefly with his niece and her husband who had traveled down from Canada. Eventually, Jeffries and Helland decided to prospect for gold in Canada. The two drove up to the Canadian border, abandoned the pickup truck, and hiked into Canada. Along the way, they stashed some of the food, gear, and rifles in several different locations. Much of this gear was subsequently identified as having belonged to the Skiffs. Helland later testified that Jeffries had told him that he had also stashed some .22 caliber handguns, although these were never recovered. Once in Canada, Jeffries called his niece and learned that the Canadian police were searching for him. Jeffries’ niece was later found to have several rings and figurines identified as having belonged to, or been made by, Phillip Skiff. Jeffries returned to Wenatchee where he was subsequently arrested on April 7,1983. He initially identified himself as James Reed, but gave his true name to police the next day. The bodies of Phillip and Inez Skiff were recovered from two shallow graves on the Skiff property on April 1 and 2, 1983. The apparent locale of the victims’ deaths was the Skiffs’ jewelry and wood shop. Blood splatters, two spent bullet casings, an apparent bullet hole in a door, and Phillip Skiff’s glasses were found there. Autopsies revealed that both victims had died of multiple .22 gunshot wounds to the front and back. Autopsies were conducted on April 4, 1983. The forensic pathologist concluded that it was impossible to state precisely when the deaths occurred. He stated that normally bodies in this condition, in a relatively warm environment would have been killed seven to ten days prior to the autopsy (March 25, 1991), but that this period of time would be greater if the bodies had been buried, as they were in this case. JURISDICTION & VENUE Petitioner Jeffries is in custody pursuant to the judgment of a state court and seeks relief on the ground that his imprisonment and sentence are in violation of his constitutional rights. This United States District Court therefore has jurisdiction over this petition for habeas corpus relief pursuant to 28 U.S.C. §§ 2254 and 1331. Petitioner Jeffries was convicted in the Superior Court of Washington in and for Clallam County. Venue is therefore proper in the United States District Court for the Western District of Washington pursuant to 28 U.S.C. § 2241(d). LEGAL STANDARDS This is a motion for summary judgment and is therefore governed by the traditional standard for summary judgment under Fed.R.Civ.P. 56. Summary judgment is appropriate if, after viewing the evidence in a light most favorable to the non-moving party, there are no issues of genuine material fact and the moving party is entitled to judgment as a matter of law. This is also a federal habeas corpus proceeding and there is a presumption that the state trial and appellate court findings of fact are correct. 28 U.S.C. § 2254(d). Pursuant to statute, the presumption of effectiveness does not apply if it is established or admitted: (1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the fact finding procedure employed by the State court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; (7) that the applicant was otherwise denied due process of law in the State court proceeding; (8) or unless ... the federal court on a consideration of [the pertinent part of the State court record] ... concludes that such factual determination is not fairly supported by the record____ 28 U.S.C. § 2254(d). The Court will note those instances in which the presumption of correctness does not apply as necessary, below. DISCUSSION The amended petition for the writ of habeas corpus contains eighteen claims for relief. Eight claims, numbered 6.1 through 6.8, relate to the guilt phase of the trial. Ten claims, numbered 7.1 through 7.10, relate to the penalty phase of the trial. Each of these claims is considered below. A. Claim 6.1: Failure to Change Venue/Jury Misconduct Petitioner alleges that the failure of the trial judge to change venue, continue the trial, sequester the jury, or to take other prophylactic steps to protect the defendant from the effects of pretrial and trial publicity rendered the trial fundamentally unfair. Claim 6.1 contains two distinct allegations. First is a general allegation concerning prejudicial trial and pretrial publicity (11 6.1.1 to .6). Second is a specific allegation that one or more jurors improperly introduced extrinsic information concerning Jeffries’ criminal background into the jury deliberations (¶ 6.1.7 to .12). The Washington Supreme Court considered the more general allegation on direct appeal. Jeffries I, 105 Wash.2d 398, 409-10, 717 P.2d 722 (1986). The more specific allegation was not raised by Jeffries on direct appeal. The issue was raised in Jeffries’ third personal restraint petition, but was not considered on the merits by Washington Supreme Court on the grounds that it was an improper “renewed” claim for relief. Jeffries IV, 114 Wash.2d 485, 488-491, 497-98, 789 P.2d 731 (1990). 1. Trial and pretrial publicity. (a) Background. Respondent admits that this case received extensive media coverage in the weeks after the murders of the Skiffs. A detailed recitation of the media coverage can be found in the state court record. See 12 REC 3758-3949. A summary of this coverage is provided below. Primary coverage occurred in the Port Angeles Daily News, a Clallam County newspaper with an average daily paid circulation of 13,001 and a Sunday circulation of 13,791. Clallam County has a population of 50,000 (of which approximately 36,-250 individuals are over 18 years of age and, assuming they are registered voters, eligible for jury duty) consisting of approximately 16,400 households. The bodies of Philip and Inez Skiff were discovered on April 2, 1983. The Port Angeles Daily News published stories relating to the murders on April 4, 5, 6, 8, 10, 13, 15, 17, 19, May 1, 8, and 11, 1983. Jury voir dire commenced on October 3, 1983 and the trial itself began on October 19, 1983. The news articles, many of which were on the front page of the Daily News, included the following information about the crime and petitioner Jeffries: (1) Jeffries’ Canadian conviction for armed robbery, his prison term in Canada, and the fact that he was on parole and being sought by Canadian authorities for possible parole violations; (2) the Clallam County Sheriff’s statement that Jeffries was “armed and dangerous” and that the murders had been premeditated; (3) the fact that the Skiffs had died of multiple gunshot wounds and that their bodies were “gunshot-riddled”; (4) a description and diagram of the crime scene; (5) the statements of the Opdahls, who testified extensively at trial and were the last witnesses to see the Skiffs alive; (6) the fact that firearms were missing from the Skiff residence; and finally, (7) details of Jeffries’ arrest. Several of the articles also included a photograph of Jeffries. The Seattle Post-Intelligencer reported the murders on Monday, April 4, 1983, Section A, page 1. The Seattle Times reported the case on Tuesday, April 5, 1983, Section B, page 1. The combined daily circulation of these two papers in Clallam County is 3,988. Television and radio coverage was also fairly extensive. There are 16,400 television households in Clallam County, with Seattle television stations dominating the market. KOMO Television reported the story on April 4, 5, 7, 8, 9, 10, 11, and 15, 1983. KING Television broadcast the story on April 4, 5, and 15, 1983. Other broadcasts also occurred. The content of the broadcasts was similar to the coverage contained in the Port Angeles Daily News, including Jeffries’ prison record, his parole status, and the Sheriff’s statement that there was probable cause to arrest Jeffries. A photograph of Jeffries was also broadcast. On May 9, 1983, the defense moved for a change of venue and, at oral argument, suggested that a jury be selected in another county and brought to Clallam County for the trial. These motions were denied by the trial judge. 1 REC 179. When the case became a “death case,” the defense requested that the court reconsider its decision not to change venue. The motion for reconsideration was denied. 1 REC 264-65. The motion for a change of venue was renewed, and again denied, after a letter threatening Jeffries with death was received by the Prosecuting Attorney’s office. 2 REC 531. The defense moved to close the courtroom and to seal pretrial pleadings. This motion was denied. 1 REC 183-84. Jury selection commenced on October 3, 1983 and concluded on October 18, 1983. One hundred and eighty venire persons were available as jurors. Six members of the venire were excused for cause on the grounds that they believed the defendant was guilty based upon what they had read or seen in the media. 5 REC 1446-50, 1506, 1552-54, 1557-58; 6 REC 1908-10; 7 REC 1960. Three venire members were excused because they read about the case after being instructed not to by the trial judge. 5 REC 1392; 7 REC 2023, 2029. The defendant exercised four peremptory challenges against venire members who had information derived from the media concerning the case. 3 REC 891; 4 REC 985; 5 REC 1537; 6 REC 1613-14, 1626-27. Of the 12 venire members eventually chosen for the jury, 11 had been exposed to media coverage of the murders. Each of these individuals stated that he or she had not formed an opinion as to Jeffries’ guilt. Each juror also stated that he or she could set aside whatever information he or she had received and judge the case on the evidence presented. None of these 11 jurors was challenged for cause by the defense. In addition, the defense did not exercise any of 8 available peremptory challenges to excuse these individuals. (b) Analysis. As a federal court sitting in habeas corpus, this Court must conduct an independent review of the record to determine whether the media coverage so prejudiced the petitioner that a fair trial was impossible. This review must include an examination of the exhibits containing news reports about the case for volume, content, and timing to determine whether they were prejudicial. Determinations of juror bias are factual determinations to which the presumption of correctness under 28 U.S.C. § 2254(d) applies, although the constitutional standard of jury impartiality is a question of law. See Harris v. Pulley, 885 F.2d 1354, 1360-61 (9th Cir. 1988) (and cases cited therein). Due process requires a change of venue when the trial court is unable to seat a panel of impartial and indifferent jurors because of prejudicial pretrial publicity or an inflamed community atmosphere. Id. at 1361; Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963). The prejudicial effect of pretrial publicity is tested under: (1) a presumed prejudice standard and (2) an actual prejudice standard. 1. Presumed Prejudice: Prejudice is presumed (i.e., it is not necessary to determine if actual prejudice is present) when the record demonstrates that the community where the trial was held was “saturated with prejudicial and inflammatory media publicity.” Rideau, 373 U.S. at 726-27, 83 S.Ct. at 1419. Presumed prejudice is rare and reserved for those extreme situations in which the pretrial publicity has rendered the subsequent trial a “hollow formality.” A review of the exhibits contained in the state court record detailing the nature and extent of the pretrial publicity convinces the Court that this is not a case in which prejudice should be presumed. The Court agrees with the trial judge’s characterization of the media coverage as essentially factual in nature. Simply put, while the media coverage clearly identified Jeffries as a prime suspect (which was certainly correct), the Court does not consider the coverage to have been unduly inflammatory or prejudicial. In addition, the bulk of the media coverage was limited to a two-month period immediately following the discovery of the bodies. The selection of a jury did not begin until six months later. The delay between media coverage and jury selection substantially limits the prejudicial effect of the media coverage. The Court therefore declines to find “presumed prejudice” from the jurors' pretrial media exposure. 2. Actual Prejudice: Next, the Court must determine whether the jurors demonstrated actual partiality or hostility that could not be laid aside. Harris, 885 F.2d at 1363; Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). Actual prejudice does not mean that the jurors must be totally ignorant of the facts and issues involved, but rather that they must be unable to set aside their opinions and impressions and render a verdict on the evidence presented. Harris, 885 F.2d at 1363. The Supreme Court has stated that a good indicator for determining the reliability of juror assurances of impartiality is the number of venire members who will admit to a disqualifying prejudice. The greater the number of venire members who admit to prejudice, the more doubtful are the voir dire responses of the remaining jurors. Murphy, 421 U.S. at 803, 95 S.Ct. at 2037. It is thus irrelevant in the present case that 11 of the 12 jurors had some prior knowledge of the case. All of those jurors stated under oath that they could set their previous knowledge aside and impartially judge the guilt or innocence of the defendant. The validity of the jurors’ assurance of impartiality is confirmed by the fact that of the 180 members of the venire, only six were excused because, based upon what they had seen or read in the media, they believed the defendant to be guilty. Three more venire members were excused after reading about the case after having been instructed by the trial judge not to do so. As the Supreme Court noted in Murphy, it is not unusual in a highly publicized case to excuse 20 individuals from a pool of 78 because they had formed an opinion of the defendant’s guilt. Id. Clearly, the very limited number of jurors excused in the present case (6 out of 180) on this ground demonstrates that the actual prejudice caused by media exposure was virtually nonexistent. In addition, the Court notes that the voir dire of all the jurors was extensive and thorough. The state record of the jury voir dire is contained in almost five volumes of material. Petitioner has not specified any specific portion of this record as suspect. The Court has reviewed this portion of the record and concludes that the defendant had a more than adequate opportunity to uncover any potential or actual prejudice. Moreover, in light of the defendant’s eight unused peremptory challenges, the defendant could easily have stricken any venire member whose impartiality was suspect. The Court declines to find actual prejudice resulting from the pretrial media coverage in this action. 2. Extrinsic evidence re: Jeffries’ criminal history. (a) Background. Petitioner has alleged that the media coverage outlined above resulted in two specific instances of jury misconduct during the trial. Both involve references to Jeffries’ criminal history. The trial court had previously granted defense motions in limine excluding any reference to Jeffries’ criminal or parole record. First, during the guilt phase, there is an allegation that one of the jurors stated: “[T]he guy’s a convicted robber anyway ... oh, we’re not supposed to know that are we?” Second, there is an allegation that during the penalty phase of the trial there “was some discussion of Mr. Jeffries’ character in light of his possible record.” The background of the first instance of alleged juror misconduct follows. Two years after the trial, juror Thomas Tyszko alleged in an affidavit that, while returning to the jury room, another juror stated to the entire jury that “Jeffries is a convicted armed robber.” In a subsequent affidavit, Tyszko stated that juror followed up this remark with a smirk and stated “Oh, we’re not supposed to know that, are we?” This remark was allegedly followed by silence. In a third affidavit, Tyszko identified juror Erin Thomas as the source of the remark. Tyszko stated that he was unsure if anyone else had heard the remark except perhaps Kathleen Sims, that he personally ignored the comment, and that the issue was never raised again during the deliberations. Kathleen Sims recalls that a statement along the lines suggested by Tyszko may have been made. She does not believe that it was heard by many of the jurors. Sims testified at the evidentiary hearing that the remark, if it was made, was given very little attention by any of the jurors. Sims stated that someone, perhaps even Sims herself, may have responded that Jeffries’ criminal record was irrelevant and that it should not be discussed. The testimony of juror Michael Stamon essentially mirrors that of juror Sims. Stamen was even less sure that such a comment had been made. None of the remaining jurors recalls a comment concerning Jeffries’ record being made in this context. Erin Thomas specifically denies making the statement attributed to him by Tyzsko and denies any prior knowledge of Jeffries’ criminal record. The jury foreman states that, had he heard such a statement, he would definitely have reported it to the trial judge. After considering the affidavits contained in the state record and the testimony offered at the evidentiary hearing, the Court concludes that this reference to Jeffries’ criminal background, if it was made at all, occurred only once, was almost certainly heard by only a few jurors, and did not play a role of any significance in the course of the guilt phase deliberations. The second incident of juror misconduct is even more sparse. Juror Sims has testified that during the penalty phase of the trial one juror stated: “Didn’t Jeffries have a record?” Sims states that the jury concluded this question to be irrelevant and it was not considered during the remainder of their deliberations. (b) Analysis. While the introduction of extrinsic evidence raises a constitutional issue as to whether the defendant was tried by an impartial jury, “due process does not require a new trial every time a juror has been placed in a compromising situation.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982). In cases involving the introduction of extrinsic evidence into jury deliberations, “the proper standard to be applied is whether it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict.” Gibson v. Clanon, 638 F.2d 851, 855 (9th Cir.1980). The Ninth Circuit has outlined five factors to be considered when assessing such claims of jury misconduct: (1) whether the extrinsic material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the jury discussed and considered it; (4) whether the extrinsic material was introduced before the verdict was reached, and if so, at what point in the deliberations was it introduced; and (5) any other matters which may bear on the issue of the reasonable possibility of whether the introduction of extrinsic material affected the verdict. Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir.1986) (citations omitted). After considering these factors in light of the state court record and the evidence offered at the evidentiary hearing, the Court concludes that there was no reasonable possibility that the extrinsic evidence contributed to the verdict either in the guilt or death penalty phase. In applying the Bayramoglu factors to the alleged remark made during the guilt phase as the jury was returning to the jury room, the Court concludes as follows. First, even assuming that the remark was made, it was heard only by three jurors at most. The rest of the jury did not “receive” this information. Second, the evidence clearly indicates that the remark was made only in passing and was not repeated. Third, the remark was neither considered nor dwelled upon by the jury. Fourth, the remark was introduced prior to a verdict being reached. The record is unclear, but it was apparently not introduced during deliberations, but rather in the course of the trial itself. Fifth, and perhaps most importantly, is the fact that even those jurors who actually heard the remark have repeatedly stated that it was not a factor in reaching their decision. The Bayramoglu factors apply in virtually the same manner to the comment allegedly made during the penalty phase. Briefly, the comment was only recalled by a few individuals and each of those individuals agrees that the comment was brief and was not a factor in his or her decision to impose the death penalty. Under these circumstances, the Court concludes that there is no reasonable possibility that the introduction of extrinsic evidence affected the jury verdict in this action. For the reasons outlined above, the Court declines to grant petitioner Jeffries’ claim for relief number 6.1. B. Claim 6.2: Insufficient Evidence Jeffries alleges that there was insufficient evidence presented at trial to support a finding of aggravating circumstances beyond a reasonable doubt. 1. Background. The factual background of the crimes with which petitioner Jeffries was charged has been outlined in the preliminary section of this order and are incorporated here by reference. In Washington, an individual is guilty of aggravated first degree murder if he is found to have committed murder in the first degree as defined in RCW 9A.32.-030(l)(a) (“premeditated intent to cause the death of another person, he causes the death of such person or of a third person”) and one or more of the aggravating circumstances outlined in RCW 10.95.020 are found to exist. Jeffries was charged with the following two aggravating circumstances on each of the two counts of murder: (1) that the defendant committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime, and (2) that there was more than one victim and that the murders were part of a common scheme or plan or the result of a single act of the defendant. The jury returned a special verdict finding both aggravated circumstances present on both counts. RCW 10.95.020(7) and (8). 15 REC 4806, 4808, 4810-11. Jeffries contends that insufficient evidence existed to tell what underlying crime has been committed, what victim was murdered first, and whether the murders were part of a common scheme or plan. The Washington Supreme Court reviewed the record and concluded that there was “substantial evidence to support the jury’s findings and verdict that defendant killed the victims in order to steal their property and to prevent his identification as their killer.” Jeffries I, 105 Wash.2d 398, 407, 717 P.2d 722 (1986). 2. Analysis. In a criminal action the burden is on the prosecution to prove every fact necessary to constitute the charged crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). A challenge to a state criminal conviction under 28 U.S.C. § 2254 based on a claim of insufficient evidence, however, shall be granted only if it is found upon “viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). Another way of stating this standard is that habeas relief on this claim is only appropriate if no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Id. at 320-24, 99 S.Ct. at 2789-92. Applying this standard, the Court concludes that the jury could rationally have found the presence of either of the two aggravating circumstances. To begin with, petitioner raises a variety of questions designed to attack the sufficiency of the evidence. Petitioner, for example, questions why, if he was intending to steal the Skiffs’ property, did he not commit the crime when the Skiffs were in California, why did he leave behind three television sets and a VCR, why did he not remove the jewelry from the body of Inez Skiff, and why did he remain at the residence for four days following the murders? Questions of this kind, however, can always be asked when the evidence against the defendant is circumstantial. Because there is no evidence suggesting that Jeffries discussed his motives or plan with anyone prior to committing the crime, and because no one actually witnessed the crimes, it is impossible to say precisely why Jeffries elected to take one course of action as opposed to another. Nor is such a precise recounting of Jeffries’ motives or reconciliation of his actions required of this Court. The only issue is whether a jury could have rationally reached its decision based upon the evidence presented to it. The Court begins with the uncontested fact that Jeffries was in possession of the Skiffs’ property—including a truck, chain saw, guns, gold, television set and a variety of other articles—shortly after the Skiffs were murdered. There is, of course, a variety of possible scenarios as to Jeffries’ involvement in the murder that may be posited from this bare fact. One obvious possibility is that Jeffries conceived of a plan for murdering the Skiffs so that he might steal their property with less chance of detection. This, the Court believes, is a rational interpretation of the events that were presented to the jury. By itself, this information is sufficient grounds for finding that a rational jury could have concluded that the aggravating circumstances were present. When the additional circumstances surrounding the murders are considered, this rational possibility becomes a reasonable probability. These additional factors include: Jeffries’ attempt to sell the Skiffs’ television to the Elliots shortly after the Skiffs’ deaths; Jeffries’ presence at a Port Angeles bar with a large amount of Canadian currency on the evening that the murders were probably committed; Jeffries’ attempt to sell gold belonging to the Skiffs two days after their deaths; and Jeffries’ various attempts to confuse individuals as to the location of the Skiffs and when they would return. With this evidence before it, it is possible—even, the Court believes, likely—that a rational jury would find the presence of aggravating circumstances. Claim 6.2 will be denied. C. Claim 6.3: Failure to Define Aggravating Circumstances Jeffries contends that the trial court’s failure to define the essential elements of the “aggravated circumstances” in this death penalty case constitutes constitutional error. 1. Background. Jeffries was charged with premeditated first degree murder. In Washington, if the existence of certain aggravating circumstances is proven, premeditated first degree murder can lead to a sentence of death. Before a sentence of death may be imposed, the prosecutor must first seek the death sentence, the state must prove the presence of certain aggravating circumstances, and then the jury must find that there are not sufficient mitigating circumstances to merit leniency. RCW 10.95.020 et seq. Jeffries challenges the sufficiency of the jury instructions and verdict form as they relate to the aggravating circumstances issue. At the guilt phase of the trial, the jury returned the following special verdict as to both counts. We, the jury, return a special verdict ... by answering as follows: The defendant committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime. Answer: Yes (Yes or No) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the defendant. Answer: Yes (Yes or No) 15 REC 4810-11. Petitioner contends that the trial judge’s instructions and verdict form are flawed because they failed to specify or define the following essential elements of the offense: (1) the crime Jeffries was alleged to have concealed; (2) the “common scheme or plan”; (3) the mental states corresponding to the acts alleged as aggravating circumstances; and (4) the indicia of mens rea attendant to the common scheme or plan or result of a single act. While Jeffries does not indicate the instructions to which he objects, they appear to be Instruction No. 6 (definition of aggravated murder in the first degree), No. 7 (to convict—count I), and No. 8 (to convict— count II). 15 REC 4796-4800. Jeffries did not object to these instructions on the grounds raised in claim 6.3 at trial. The Washington Supreme Court considered, and denied, the instant argument on direct appeal. The Washington Supreme Court specifically held that Washington’s aggravated murder statute does not include a requirement that a specific crime be stated or proven, only that the defendant committed the murders to conceal his identification as the person committing a (general, not particular) crime. Jeffries I, 105 Wash.2d 398, 419-420, 717 P.2d 722 (1986). 2. Analysis. In order to establish a due process violation based upon faulty jury instructions, a habeas petitioner must show the instruction by itself infected the entire trial to such an extent that the resulting conviction violates due process. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Van Pilon v. Reed, 799 F.2d 1332, 1342 (9th Cir.1986). The burden on the petitioner becomes “especially heavy” when the alleged error is the failure to give an instruction, as opposed to the actual giving of an erroneous instruction. Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). Petitioner argues extensively that the instructions and verdict form violate the general constitutional mandate that every element of the crime be proved beyond a reasonable doubt. The principle that all elements of the crime must be proven beyond a reasonable doubt is a proposition with which the Court certainly agrees. See In re Winship, 397 U.S. 358, 369, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368 (1970). The United States Supreme Court has made it abundantly clear, however, that the prosecution must prove beyond a reasonable doubt only those elements of the crime included in the definition of the offense. Patterson v. New York, 432 U.S. 197, 210-211, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977). Moreover, it is the sole responsibility of the States to define the elements of criminal offenses. See, e.g., Martin v. Ohio, 480 U.S. 228, 232, 107 S.Ct. 1098, 1101, 94 L.Ed.2d 267 (1987) (reiterating the “preeminent role of the States in preventing and dealing with crime and the reluctance of the Court to disturb a State’s decision with respect to the definition of criminal conduct ... including the burden of producing evidence and allocating the burden of persuasion”). In the present case, the Washington Supreme Court has determined that under Washington law there is no requirement that the prosecution prove that a defendant charged with aggravated first degree murder intended to conceal a párticular crime. Jeffries I, 105 Wash.2d, 398, 419-20, 717 P.2d 722 (1986). This conclusion is consistent with the Supreme Court’s interpretation of Washington’s similar statutes involving “intent to commit a crime” provisions. See, e.g., State v. Bergeron, 105 Wash.2d 1, 711 P.2d 1000 (1985). Therefore, petitioner’s belief that it is necessary for the State to specify and define which crime defendant intended to commit is clearly incorrect. Washington State has not included that as an element of the offense of premeditated first degree murder. To the extent that petitioner is suggesting that the definition of aggravating circumstances is unconstitutionally vague, the argument is not well taken. The United States Supreme Court has stated that a capital sentencing scheme must provide a meaningful basis for distinguishing those case in which the death penalty is imposed from those in which it is not, must obviate standardless sentencing discretion, and must channel the sentencer’s discre