Full opinion text
OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS RAFEEDIE, District Judge. I. INTRODUCTION Petitioner, William George Bonin, has filed a petition for a writ of habeas corpus challenging his 1982 convictions in Los An-geles of ten counts of first degree murder and his subsequent death sentence. After his Los Angeles trial, petitioner stood trial in Orange County where he was convicted of four additional counts of first degree murder and received another death sentence. This order and opinion concerns only the Los Angeles case. Petitioner has set forth 24 constitutional violations which he believes require the Court to reverse either his convictions, his sentence, or both. In reviewing this petition, the Court read the entire 5,561 pages of trial transcripts, the clerk’s transcripts, the briefs in petitioner’s automatic appeal and state habeas, and all of the pleadings and responsive documents filed by both parties. In addition, the Court conducted a three day evi-dentiary hearing encompassing several of the issues raised in the petition. The Court has closely examined each issue raised by petitioner. As discussed in detail below, the Court finds that petitioner has not raised any claim which mandates the granting of a writ of habeas corpus. Accordingly, the Court DENIES Bonin’s petition for writ of habeas corpus. II. FACTS Petitioner was convicted in Los Angeles of the murder of ten young males: Marcus Grabs (age 17), Donald Hyden (age 15), David Murillo, Charles Miranda (age 15), James Macabe (age 12), Ronald Gatlin (age 19), Harry Turner (age 14), Steven Wood (age 16), Darin Kendrick (age 19), and Steven Wells (age 18). The string of murders began in August 1979 and continued until June 1980. All of the victims died from ligature strangulation with the exception of Grabs, who died from multiple stab wounds. Each victim had ligature marks around his neck and either his wrist or ankles, or both. Each victim showed signs of having been beaten around the face and other areas of the body. The evidence disclosed that seven of the victims had engaged in sexual activity prior to their death. With two exceptions, the victims were found nude with no clothing or other identifying evidence in the vicinity. The prosecution presented three types of evidence. First, the jury heard the testimony of Greg Miley and James Munro, petitioner’s former co-defendants. Miley testified that he assisted Bonin in murdering Miranda and Macabe. Munro told the jury that he was present when Bonin murdered Wells. Second, a number of witnesses (a television newscaster, two of petitioner’s friends, and two fellow inmates) testified that Bonin admitted killing one or more of the victims. Third, forensic experts linked petitioner to the murders through carpet fibers, hair, semen, and blood. The defense consisted primarily of discrediting Munro and the inmate witnesses. At the penalty phase; the prosecution introduced evidence that Bonin sexually assaulted five young males in the late 1960’s and mid-1970’s and that he killed four young men in Orange County. The defense presented the testimony of Bonin’s mother and two brothers about Bonin’s troubled childhood; the testimony of Bo-nin’s friend that Bonin was non-violent; and the testimony of a prison psychologist who discussed Bonin’s prison progress. The jury returned a death sentence after less than one day of deliberation. III. THE ISSUES A. CLAIMS INVOLVING THE ACTIONS OF PETITIONER’S TRIAL COUNSEL The Court first addresses the common subparts of petitioner’s issues two, four, and five. In those three issues, petitioner delineates a host of errors and omissions for which he holds his trial attorney, William Charvet, responsible. In issue two, petitioner argues that Charvet made errors and omissions because of a conflict of interest due to a literary rights agreement. Similarly, in issue four, petitioner attributes the errors and omissions to Charvet’s use of drugs during the trial. Finally, in issue five, petitioner suggests that the errors and omissions were a result of Char-vet’s general ineffective assistance of counsel. Because these errors and omissions constitute the “adverse effect” component of each of the broader issues, the court will discuss each error or admission before discussing the issues of the literary rights agreement, drug usage, and ineffective assistance of counsel. 1) Charvet Failed to Investigate and Obtain a Carpet Fiber Expert to Counter the Testimony of the State’s Experts PETITIONER’S CLAIM Petitioner argues that Charvet should have hired a carpet fiber expert to testify that there were an insufficient number of fibers collected from the bodies to be compared with any degree of accuracy with the carpet fibers from petitioner’s van. DISCUSSION The Court does not consider Charvet’s failure to call a carpet fiber expert to be below the standard of competence expected of an attorney. Given the imprecise nature of fiber analysis, the additional testimony of a carpet fiber expert would add very little. Indeed, each prosecution witness testifying about the carpet fibers acknowledged that the fiber comparisons showed only that there were no dissimilarities between the fibers found on the bodies and the fibers taken from the carpeting in petitioner’s van. The witnesses further admitted that they could never prove conclusively the source of the fibers found on the bodies. Even assuming that Charvet was incompetent for failing to call a carpet fiber expert, the Court finds no prejudice. There is no reasonable probability that the outcome of the trial would have been different had a carpet fiber expert been called to testify that the fiber sample size was too small for a reliable comparison. 2) Charvet Failed to Investigate Mitigating Factors in Petitioner’s Childhood As Well As Mitigating Psychiatric Evidence PETITIONER’S CLAIM Petitioner alleges that Charvet failed to investigating two relevant mitigating factors: petitioner’s childhood and petitioner’s psychiatric problems. Petitioner maintains that if Charvet had conducted a proper investigation, he would have learned that petitioner was physically abused as a child, was sexually assaulted by a number of adult males, and suffered from a bipolar mental disorder. Petitioner speculates that the presentation of this information would have humanized him in the eyes of the jury and would have made it reasonably probable that the jury would have opted for a life sentence rather than death. DISCUSSION Childhood Mitigation The Court finds that Charvet presented a constitutionally adequate portrayal of Bonin’s childhood. During the penalty phase, Charvet presented evidence that petitioner’s father had a history of abusing alcohol, gambling, and physically assaulting his wife and children. Charvet also presented evidence that petitioner was sexually molested while at a detention center when he was only ten years old. Moreover, after focusing primarily on Bonin’s ability to function productively in prison, Charvet stated in his penalty phase closing argument, “I’m not going to go into trying to blame — about the beating of the mother or losing the home — because that’s not really part of it. We are talking about what happens. If Mr. Bonin lives, what happens? And why should he die?” [LART 18/5523]. Thus, not only did Charvet present the very evidence that Bonin is complaining Charvet failed to investigate, but Charvet also explained on the record and to the jury that his intent was not to elicit sympathy for petitioner, but rather to show that petitioner could be a functioning member of society if his life was spared. The Court previously denied petitioner’s request for an evidentiary hearing on this issue, but granted the request for an evi-dentiary hearing on a similar issue in the Orange County case. The Court takes judicial notice of the testimony heard at the evidentiary hearing. The evidence presented at the hearing would have added very little to that which Charvet presented at trial. Through declarations, petitioner presented evidence that several of his classmates from fifth and sixth grade recalled that he was always dirty, he related poorly to other children, and he had no friends. A neighbor from childhood remembered that petitioner’s parents were rarely around and they never spent time with petitioner and his brothers. Several people who were at the orphanage when Bonin was there vividly described the abusive practices of the orphanage. Of note however, not one declaration named petitioner as either a victim of or a witness to the abuse. In sum, further investigation by Charvet would have revealed little more than that which Charvet did present. Moreover, Charvet articulated for the jury his tactical reasons for not pursuing childhood mitigation with any more vigor. Charvet decided that his best hope for sparing petitioner’s life was to demonstrate that petitioner functioned well in an institutional setting. In hindsight, maybe that was not the best approach. But this Court’s role is to examine Charvet’s performance at the time it was given. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct, 2052, 2065, 80 L.Ed.2d 674 (1984). Accordingly, this Court finds no constitutional error with Charvet’s presentation of the childhood mitigation evidence. Psychiatric Evidence The record is clear that Charvet never sought a psychiatric evaluation of petitioner prior to or during the Los Ange-les trial. Given the nature of the charges which petitioner faced, as well as post-conviction evidence indicating that petitioner may be suffering from a psychiatric disorder, the Court granted an evidentiary hearing on this issue. After listening to the expert testimony at the hearing, the Court finds that petitioner has failed to provide persuasive evidence of brain organicity or any other psychiatric or neurological disorder. Dr. Pincus testified that petitioner’s history, as well as his neurological examination, supported a finding of an organic brain disorder. Of significance, petitioner did not demonstrate any correlation between Dr. Pincus’ findings, which were obtained in late 1991, and petitioner’s mental condition at the time of the murders. Moreover, respondent’s experts disputed the findings and conclusions made by Dr. Pincus. Forced to choose between competing psychiatric and neurological testimony, the Court finds that Drs. Dietz and Nuwer were more credible than Dr. Pincus. The Court cannot help but believe that Dr. Pincus’ views on the inappropriateness of the death penalty affect his clinical interpretations in this highly subjective area of medicine. Finally, the Court is keenly aware that the presentation of psychiatric testimony at the penalty phase would have led to exactly what occurred at the evidentiary hearing— a case of dueling experts canceling out each others testimony. The Court further notes that despite extensive pre-hearing briefing alleging that petitioner suffers from a bipolar psychiatric disorder, petitioner abandoned this argument at the hearing and focused instead on a theory of organic brain disorder, thus demonstrating the fluid nature of psychiatric testimony. The Court concludes that Bonin was not prejudiced by Charvet’s failure to present psychiatric evidence. It is not reasonably likely that had the jury heard the type of testimony presented at the evidentiary hearing, the jury would have returned a life verdict. Because petitioner failed to demonstrate prejudice, the Court need not examine the propriety of Charvet’s failure to conduct a psychiatric investigation. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. 3) Charvet Called James Munro as a Defense Witness and Failed to Edit a Tape Played to the Jury of Munro’s Interrogation in Which an Uncharged Murder is Attributed to Petitioner PETITIONER’S CLAIM Petitioner argues that the testimony of James Munro, his former co-defendant, was the most damaging evidence against him. By calling Munro as a defense witness, Charvet wrongly bolstered Munro’s credibility in the eyes of the jury. As for the tape, petitioner says nothing other than that Charvet failed to edit the tape. DISCUSSION Without a doubt, Munro’s testimony about the Wells murder was a key piece of evidence against Bonin. Munro, however, was a witness with a history of lying and manipulation. Charvet called Munro as a defense witness to place before the jury more evidence of Munro’s lies and manipulations. The transcript of Munro’s testimony shows that Munro, as a defense witness, once again demonstrated his inability to be truthful and candid. Of importance, Munro did not testify about the details of the Wells murder while he was a witness for the defense. [LART 15/4411-4419]. With little else upon which to build a defense, Charvet cannot be faulted for trying to discredit a crucial witness. Certainly this is a tactical decision that falls within the realm of effective trial advocacy. In any event, even if it was poor lawyering, Bonin has offered nothing to support a finding of prejudice. As for the tape, Charvet described his tactical reasons for playing the tape. Moreover, petitioner concurred with the decision to play the unedited tape. Charvet’s actions with regard to the tape were neither ineffective, nor prejudicial. 4) Charvet Failed to Object to Lloyd Carlo Douglas’ Testimony that He and Petitioner Engaged in Oral Sex Between the Bars of Douglas’ Jail Cell and Charvet Elicited Damaging Statements From Douglas During Cross-Examination PETITIONER’S CLAIM Petitioner does not articulate the nature of his claim with much detail. Presumably, he finds fault with Charvet’s failure to object to the testimony about oral sex because the testimony was prejudicial. Regarding Charvet’s cross-examination of Douglas, petitioner says that Charvet elicited sensational and extremely damaging statements from Douglas. These statements were the only evidence that Bonin cut off penises, tied two victims together, stuck a dildo into one boy’s rectum, bit through one victim’s penis and chewed off the nipple of another victim. Also, Charvet elicited the only testimony that Douglas needed to be in protective custody after testifying against petitioner and that petitioner said they have not found all of the bodies and they never will. DISCUSSION Setting aside the question of whether Charvet’s actions vis-a-vis Douglas’ testimony were wrong, it is clear that petitioner suffered no prejudice. It cannot fairly be said that the jury might have returned a different verdict had Douglas not testified about his sexual relationship with petitioner. The Court finds it highly improbable that petitioner’s sexual habits in jail had any impact on the determination of his guilt or innocence of twelve counts of first degree murder. In addition, when viewed in the context of the atrocities petitioner was accused of committing, testimony about oral sex in prison is hardly prejudicial. In fact, Charvet used the testimony about the oral sex to discredit Douglas during his closing argument. Charvet asked the jury to consider the probability of petitioner repeatedly orally copulating Douglas through the food slot of Douglas’ cell in the hallway of the guarded high-security module without ever being caught. Charvet implied that if Douglas could make up that story, then how could the rest of his testimony be believed. As for the “prejudicial” statements elicited by Charvet on cross-examination, it is apparent that the jury did not find Douglas’ testimony to be credible. Many of the acts Douglas attributed to petitioner involved mutilation. The testimony of the pathologists who performed the autopsies on the bodies refuted any argument that the victims, in general, were stabbed, cut, or mutilated in the manner described by Douglas. There was testimony that one victim, Thomas Lundgren had his penis cut off. The jury, however, acquitted petitioner of Lundgren’s murder, a clear sign that the jury did not believe Douglas. Regardless of the correctness of Char-vet’s cross-examination strategy, it is not reasonably likely that the outcome of the trial would have been different without the statements elicited by Charvet. As one court noted, “A wrong question, or a series of them, in a criminal trial would seldom be considered as decisive elements of ineffective assistance.” Lane v. Le Fevre, 705 F.Supp. 88, 95 (N.D.N.Y.1989), aff'd without op., 891 F.2d 277 (2d Cir.1989). This Court agrees. 5) Charvet Failed to Object to David Lopez’ Testimony That Petitioner Admitted to Him That He Killed 21 Victims PETITIONER’S CLAIM Petitioner finds error with Char-vet’s failure to object to portions of David Lopez’ testimony where Lopez stated that petitioner admitted killing 21 victims. DISCUSSION To sustain an ineffective assistance of counsel claim, petitioner must demonstrate not only that counsel’s performance was severely deficient, but also that absent the deficiency, there is a reasonable likelihood that the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Petitioner cannot meet this second requirement. Petitioner concedes, as he must, that the prosecution was entitled to elicit Lopez’ testimony concerning Bonin’s admission to killing 11 of the 12 victims for whom Bonin was standing trial. [Petitioner’s Supplemental Brief, filed July 26, 1991, p. 2.] Therefore, even if Charvet had objected to the testimony about 21 murders, and the objection was sustained, the jury would still have learned that Bonin confessed to murdering 11 of the victims. With that kind of evidence properly before the jury, as well as the other admissible evidence strongly indicativé of Bonin’s guilt, it cannot reasonably be argued that if Charvet had objected to the testimony about the 21 murders, petitioner would not have been convicted of 10 counts of murder. Lopez’ testimony was extremely damaging to petitioner’s case, but the damage was due to petitioner’s admissions to Lopez, not to Lopez testifying about 21 murders instead of 11 murders. As to the soundness of Charvet's decision not to object, the Court need not resolve that question since the Court found no prejudice. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2070. However, as respondent observed, Charvet used Lopez’ testimony in an attempt to discredit him. Charvet questioned the truthfulness of Lopez’ testimony since the prosecution charged petitioner with only 12 murders, not 21. Since Lopez’ testimony was going to be devastating in any event, Charvet may have opted to take the one course of action that could potentially lessen the impact of the testimony. Therefore, the Court is of the opinion that the failure to object was not an error of constitutional magnitude. 6) Charvet Failed to Object to the Prosecutor Referring to 16 Victims in His Opening Statement and Continually Referring to 21 and 22 Victims in His Closing Statement PETITIONER’S CLAIM Petitioner takes issue with Char-vet’s failure to object to the prosecutor talking about 16 victims in his opening statement. Petitioner also takes exception to the prosecutor’s frequent reference to 21 and 22 victims in his closing statement. DISCUSSION To prevail on this issue, petitioner must rebut the presumption that Charvet’s failure to object to the prosecutor’s arguments was “sound trial strategy.” Paradis v. Arave, 954 F.2d 1483, 1494 (9th Cir.1992). In assessing petitioner’s claim, this Court need not determine why Charvet failed to object, “as long as his failure to do so falls within the range of reasonable representation.” Morris v. California, 966 F.2d 448, 456-457 (9th Cir.1992). Petitioner has not rebutted the presumption that there existed a tactical reason for Charvet not to object. As previously discussed, Charvet attempted to use Lopez’ testimony about 21 murders to petitioner’s advantage. Charvet questioned why petitioner was facing only 12 murder counts if Lopez was so reliable. Charvet’s theory would have been severely undermined if had later objected to the prosecutor’s reference to Lopez’ testimony about 21 murders. In any event, petitioner cannot demonstrate prejudice. The prosecutor mentioned 16 murders when referring to Douglas’ testimony and 21 or 22 murders when discussing Lopez’ testimony. Both Douglas and Lopez had a right to talk about petitioner’s admissions to murdering 11 of the 12 victims. There is no reasonable likelihood that the verdicts would have been different if the number 11 had been substituted in place of 16, 21, and 22 in the prosecutor’s arguments. 7) Charvet Elicited Negative and Damaging Testimony about Bonin From Prosecution Witnesses PETITIONER’S CLAIM Petitioner believes that Charvet harmed his defense by eliciting negative and damaging information about him from prosecution witnesses. Petitioner specifically refers to three incidents: 1) Charvet induced a detective to describe Grabs’ assailant as like “a rabid dog that has gone insane;” 2) Charvet caused petitioner’s friend Fraser to testify that petitioner said he did not go to the police about the “self-defense” killing of Grabs because “with my past? I would go right to jail.... Noway I am going back to jail;” 3) Charvet prompted Gustin to recall that petitioner told him that he had killed someone. DISCUSSION While Charvet’s questions may have been ill-advised, the answers did not prejudice petitioner. Grabs was stabbed over 70 times. The jury knew that. The detective’s description of the assailant was a reasonable characterization. Moreover, Charvet used the rabid dog remark to argue to the jury that there was no similarity between the Grabs murder and the other murders. As for Fraser’s remarks, the jury was not given any other information during the guilt phase about petitioner’s prior incarcerations. There is no reasonable likelihood that the jury would have returned different verdicts had it not learned that petitioner had been in jail previously. Finally, Charvet did not elicit any details from Gustin about petitioner’s admission that he killed someone. There cannot be any prejudice from that admission because Fraser, Pendleton, and Lopez each testified that petitioner had admitted killing at least one person. Issue One: THE CONFLICT OF INTEREST BETWEEN PETITIONER AND HIS COUNSEL RESULTING FROM A LITERARY RIGHTS RETAINER AGREEMENT ADVERSELY AFFECTED COUNSEL’S PERFORMANCE AND DENIED PETITIONER THE EFFECTIVE ASSISTANCE OF COUNSEL PETITIONER’S CLAIM Petitioner alleges that he retained Char-vet as counsel in exchange for a literary rights agreement which gave Charvet a percentage interest in the proceeds from a book to be written about petitioner’s life. Petitioner now claims that this agreement caused Charvet to labor under a conflict of interest, torn between his duty to represent petitioner and his desire to maximize his profit from the book. Petitioner asserts that he was unaware of the dangers in being represented by an attorney who was a party to a literary rights agreement. Petitioner further alleges that as a result of the conflict from the literary rights agreement, Charvet made all of the errors and omissions discussed above. THE LAW To obtain a reversal based on a conflict of interest, a defendant such as petitioner who did not object at trial, must prove that his attorney labored under an actual conflict that adversely affected his performance. Cuyler v. Sullivan, 446 U.S. 385, 848, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). DISCUSSION Petitioner sought an evidentiary hearing on this issue. The Court denied the request because petitioner failed to allege any valid adverse affect. For this same reason, the Court now denies this claim. To prevail on this issue, petitioner needed to make two showings: one, that there was a literary rights agreement between him and Charvet, and two, that Charvet's performance was adversely affected by the conflict. In support of the second requirement, petitioner set forth seven allegations of adverse affects due to the book agreement. As discussed in detail above, the Court has found that each of the incidents of "adverse affect" was without merit. Accordingly, petitioner has failed to satisfy the second Cuyler requirement needed for reversal. In addition, despite the denial of an evi-dentiary hearing on this issue in this case, the Court did hear evidence on the issue of a literary rights agreement as it affected the Orange County case. The Court takes judicial notice that in Bonin v. Vasquez, Case No. CV 90-3589-ER, the Court found insufficient factual support for petitioner's argument that he and Charvet had a literary rights agreement. See Bonin v. Vasquez, 794 F.Supp. 957 (C.D.Cal.1992). Thus, petitioner has also failed to satisfy the first Cuyler requirement. Issue Two: CHARVET'S CHRONIC DRUG ADDICTION AND DRUG USE SO AFFECTED HIS ABILITY TO PERFORM AS A REASONABLY COMPETENT COUNSEL THAT PETITIONER WAS DENIED THE ASSISTANCE OF COUNSEL PETITIONER'S CLAIM Petitioner contends that at the time of his trial, Charvet was addicted to prescription pain medications that affected his judgment and his ability to perform his duties. The most notable effect of Char-vet's drug usage was using poor judgment to take the case in the first place without sufficient preparation time. As a consequence of Charvet's drug addiction and resulting lack of judgment, Charvet made the errors and omissions set forth above. Charvet's drug usage caused him to render ineffective assistance of counsel. THE LAW To succeed on an ineffective assistance of counsel claim premised on an attorney's use of alcohol or drugs, a petitioner must demonstrate that the attorney's performance was deficient and that the deficiency prejudiced the petitioner. See e.g. Berry v. King, 765 F.2d 451, 454 (5th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2290, 90 L.Ed.2d 731 (1986); McDougall v. Dixon, 921 F.2d 518 (4th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 2840, 115 L.Ed.2d 1009 (1991); Hernandez v. Wainwright, 634 F.Supp. 241, 245 (S.D.Fla.1986), aff'd without op., 813 F.2d 409 (11th Cir.1987). DISCUSSION The Court discussed and rejected each of petitioner's claims of adverse effect or deficiency of performance. Accordingly, petitioner has failed to show the Court that he was prejudiced by Charvet's actions. Since petitioner has not demonstrated a necessary component of an ineffective assistance of counsel claim, the Court need not inquire into the allegations that Charvet used drugs while representing petitioner. Issue Three: CHARVET'S REPRESENTATION OF PETITIONER WAS CONSTITUTIONALLY INADEQUATE PETITIONER'S CLAIM Petitioner maintains that Charvet provided ineffective assistance of counsel in violation of the Sixth Amendment. In support of his claim, petition cites the errors and omissions discussed in detail above. THE LAW An ineffective assistance of counsel analysis has two components: 1) was counsel’s performance deficient; and 2) did the deficient performance prejudice the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In a capital case, this analysis applies both to the guilt phase and the penalty phase. Id. at 687-88, 104 S.Ct. at 2064. An attorney’s performance is deficient if it “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2065. This requires a showing that the attorney’s errors were so serious that the defendant was denied the “counsel” guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064. “A court must indulge a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. Even if an attorney commits serious error, it will not result in reversal if the error had no effect on the judgment of the case. Id. at 691, 104 S.Ct. at 2066. To prove prejudice, a defendant must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. A reasonable probability is one that undermines confidence in the outcome. Id. DISCUSSION The Court has found no merit to petitioner’s claims regarding Charvet’s errors and omissions. Therefore, the Court finds that Charvet’s representation of Bonin was constitutionally adequate. B. CLAIMS INVOLVING CHARVET’S SUBSTITUTION AS COUNSEL BACKGROUND A number of petitioner’s claims involve how William Charvet came to represent petitioner. Accordingly, the Court provides the following detailed account of the facts leading to Charvet’s substitution as petitioner’s attorney: The trial court formally appointed Earl Hanson to represent petitioner on January 2, 1981. [LART A/2]. Five days later, the court set a trial date of May 4, 1981. [LART A/7]. On March 30, 1981, Hanson asked that the trial be continued until August 1, 1981. [LART A/25]. The prosecution opposed the continuance arguing that there were 150-200 witnesses subpoenaed for the case and it was difficult to control the witnesses when the dates change. [LART A-26]. The court granted the continuance. [LART A/28]. On July 29,1981, Hanson sought another continuance until mid-September 1981. [LART A/63]. The prosecution again objected citing difficulties with coordinating the large number of witnesses. [LART A/64]. The court moved the trial date to September 14, 1981. [LART A-66]. On September 3, 1981, petitioner asked the court to substitute Charvet for Hanson. Charvet told the court that he would need a substantial continuance if he took the case because of the number of documents and charges involved. [LART A-103]. The prosecutor said he opposed any substitution and continuance because of prejudice to the prosecution’s case and because of two possible conflicts of interest involving Charvet. [LART A/104-105]. The judge continued the motion until September 14, 1981 so that the judge who heard the previous continuance motions could be present. [LART A/104]. On September 14,1981, Hanson informed the court that he was ready to proceed with trial, but that petitioner wished to substitute Charvet as his attorney. [LART A/109]. Charvet related that he and petitioner had discussed Charvet’s representation four or five months earlier, but Char-vet had to see how well he recovered from spinal surgery performed in June 1981. [LART A-109-110]. Charvet also told the court that he would need a 120-day continuance because of the file cabinets full of documents and the 12 special circumstance murder counts. [LART A-ll]. The prosecutor vehemently objected citing three major concerns. First, he expressed concern about the effect of more continuances on the prosecution’s case. He argued that he had been prepared since May 4, the original trial date, and that over one hundred witnesses were under subpoena in anticipation of the September 14 trial date. Id. Moreover, the case had been continued twice over his objections. [LART A/112]. Hanson had fourteen months to prepare and was ready to proceed with trial. Id. The prosecutor suggested that petitioner was using a dilatory tactic since petitioner never expressed a desire for new counsel until September 3, 1981. Id. He also opined that petitioner’s delays would further damage the prosecution’s case because petitioner had already attempted to influence Munro’s testimony. [LART A/113]. He feared that any further delay could erode Munro’s testimony. Id. He also told the court that further delay might cause Orange County to prosecute first, thus causing an even lengthier delay in the case. [LART A/114]. To bolster his argument, the prosecutor played a tape-recording made of petitioner’s phone call to some friends. On the tape, petitioner said that if the court did not grant his substitution, he would seek pro per status and get a six-month continuance and then get another lawyer. [LART A/129]. Next, the prosecutor informed the court that Charvet had prior contact with Munro, a key prosecution witness. [LART A/115]. According to the prosecutor, Charvet and Munro previously discussed the possibility of Charvet representing Munro, who was facing a murder charge in the death of Wells. Id. The prosecutor argued that Charvet’s representation of petitioner would create an impermissible conflict of interest since Munro would be a chief witness against Bonin. Charvet vehemently denied this charge. He acknowledged that he and/or his associate visited Munro on a couple of occasions and that he appeared at Munro’s preliminary hearing [LART A/117-118], but maintained that he and his associate were merely sounding boards for Munro’s numerous gripes. [LART A/119-120]. Indeed, Charvet declared, “but as far as conflict of interest, I have nothing I can cross-examine Mr. Munro on, any facts contrary that is not in the public record, that he has ever given me as a private attorney.” Id. Finally, the prosecutor questioned whether Bonin and Charvet included a literary rights agreement as part of Charvet’s retainer agreement since Bonin had previously told the court that he could not afford retained counsel. The court invited Char-vet to respond to the question about a book agreement. Charvet responded in an equivocal manner: [The prosecutor] has no right to go into my fee arrangement with this client.... I would feel very confident from the U.S. Supreme Court stating the following: that if a person’s only asset that he had in the whole world was a book right to get an attorney of his choice — let’s use this hypothesis — as long as the defendant himself did not benefit in any other way and saved the state and the county, and everyone else the money and he had the attorney of his choice then I think they would even allow that .... [LART l/A-123-24]. The court sought Hanson’s views on the substitution motion. Hanson said that petitioner never wanted him as his attorney and opined that petitioner was not being dilatory, but instead attempting to get counsel of his choice since he was facing a possible death sentence. [LART A/132], Hanson also agreed that a continuance of 90-120 days, or even less, would be sufficient preparation time for Charvet. [LART A/133]. Petitioner told the court that his relationship with Hanson had been good, but that due to personal vibes he could not discuss certain subjects with Hanson. [LART A/134-135]. At the conclusion of the hearing, the court made the following statements: [T]o walk into court on the day of trial after fourteen months of preparation and then ask this court for a further continuance, ninety or 120 days or beyond that is an unreasonable disruption of the judicial process. I think the statements made here by [the prosecutor] are correct. [T]he people have a right to a speedy trial, and by granting a further delay in this matter of any substantial nature is going to substantially hurt the people’s case, and I make that finding. [LART A/135]. [I] am deeply concerned with the fact that I think that this is a ploy by this defendant based upon what I have heard at this hearing, to delay this matter going to trial and I’m satisfied that if a continuance was granted through further efforts by this defendant that further delays would be sought and that the ends of justice would further be thwarted by his effort of substituting an attorney fourteen months later on the date of the trial. [LART A/138]. The court also found that Charvet had a conflict due to his prior contact with Munro. Id. The court put the matter over until September 21, 1981. [LART A/136]. Before the hearing ended, petitioner requested to go pro per if Charvet could not be his attorney. [LART A/140]. The judge put that matter over one week also, but cautioned that if he granted the motion, it would be without any continuance. On September 21, 1981, Charvet informed the court that the appellate court had denied his Writ of Mandate concerning the denial of substitution. [LART A/141], Charvet stated that he intended to pursue the issue with the California Supreme Court. [LART A/142], The court granted a continuance until October 19, 1981. [LART A/145]. The judge said the trial would start on that date in one of three ways: with Charvet as counsel if he was prepared and petitioner wanted him; with Hanson as attorney; or with petitioner representing himself and Hanson acting as advisory counsel. [LART A/145-146]. Charvet questioned how he could be the attorney given the judge’s finding of a conflict. [LART A/147]. The judge never gave Charvet a direct answer. On October 19, 1981, Charvet announced that he was prepared to go to trial. [LART 1/2], The judge granted the substitution. Id. The following colloquy took place: Charvet: [M]r. Bonin is here, and he understands, and I want him to be asked that he understands, that I’ve only had a little over one month to prepare. Mr. Hanson and himself assisted me for a full month in his pro per status, and that I’m not as comfortable with one month as I would have been with two or three.... I’d like the court to ask him on the record that he does understand that and still does agree under that— Court: Well, he previously indicated to me that he wants you as the attorney of record. And that is your frame of mind, is that right, Mr. Bonin? Bonin: That’s correct. [LART 1/4], Jury selection began that day with Char-vet as counsel. Issue Four: THE TRIAL COURT KNEW OR SHOULD HAVE KNOWN THAT THERE WAS A CONFLICT OF INTEREST BETWEEN PETITIONER AND HIS COUNSEL RESULTING FROM A LITERARY RIGHTS RETAINER AGREEMENT AND SHOULD HAVE REFUSED TO ALLOW SUBSTITUTION OF COUNSEL ABSENT A WAIVER PETITIONER’S CLAIM Petitioner contends that the trial court had sufficient reason to know or suspect that he was compensating Charvet for his attorney services through a literary rights agreement. Accordingly, the court should have inquired about the agreement and then either prevented Charvet from substituting as Bonin’s counsel or obtained a knowing, intelligent, and voluntary waiver of a conflict of interest from petitioner. The court neither inquired, nor secured a waiver. As a result, petitioner went to trial unaware of the dangers of having an attorney burdened by a conflict of interest. This violated petitioner’s right to the effective assistance of counsel, to a reliable death judgment, and to due process. THE LAW The Sixth Amendment encompasses not only the right to an attorney, but the right to an attorney who is not burdened with a conflict of interest. Cuyler v. Sullivan, 446 U.S. 336, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). To give meaning to such a right, the trial court has a duty “to recognize the possibility of a disqualifying conflict of interest.” Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1104, 67 L.Ed.2d 220 (1981). When the possibility of a conflict is sufficiently apparent to the court, the court has an obligation to inquire into the conflict. Id. In Wood, the Court found the possibility of a conflict to be so obvious that it raised and decided the issue sua sponte. The conflict in Wood involved an attorney simultaneously representing both the employees of an adult bookstore and the owner of the bookstore. The employees had been convicted of distributing obscene material and sentenced to hefty fines and probation. When the employees failed to pay the fines, the court revoked their probation. The employees told the court that they could not afford the fines and that they had been led to believe that the owner would pay their criminal fines. Indeed, the owner had paid for other costs associated with the employee’s legal problems. The record strongly suggested that the owner had no intention of paying these particular fines, however, hoping instead to use the case to raise a constitutional challenge. During the hearing on the employee’s probation revocation, the state explicitly raised the conflict issue to no avail. On these facts, the Court determined that the trial court should have further explored the attorney’s dual representation. To remedy the due process violation, the Court remanded the case to the trial court for a hearing to determine whether an actual conflict of interest existed. DISCUSSION Taking its lead from the Wood court, if this Court were to find that the trial court should have made further inquiry, than the Court would hold a hearing to determine whether an actual conflict of interest existed at the time Charvet became counsel for Bonin. The Court notes that petitioner did not seek an evidentiary hearing on this particular Wood issue. However, petitioner did seek an evidentiary hearing on claims of ineffective assistance of counsel related to the literary rights agreement in both this case and the Orange County case. The Court denied the evidentiary hearing in this case because petitioner’s claims related to adverse effect were found to be without merit. On the other hand, the Court heard extensive testimony concerning the existence of a literary rights agreement in the Orange County case. The Court takes judicial notice that in Bonin v. Vasquez, 794 F.Supp. 957, this Court found insufficient factual support for petitioner’s argument that he and Char-vet had a literary rights agreement. Accordingly, the Court finds no reason to resolve the Wood question since the Court has already determined that Charvet did not have an actual conflict of interest due to a literary rights agreement. Issue Five: THE CONFLICT OF INTEREST BETWEEN PETITIONER AND HIS COUNSEL RESULTING FROM COUNSEL’S PRIOR ATTORNEY-CLIENT RELATIONSHIP WITH THE CHIEF PROSECUTION WITNESS MUNRO DENIED PETITIONER THE EFFECTIVE ASSISTANCE OF COUNSEL PETITIONER’S CLAIM Petitioner argues that Charvet suffered from an actual conflict of interest because he had a prior attorney-client relationship with James Munro, a key prosecution witness. Petitioner submits that he was never informed of the dangers inherent in being represented by an attorney burdened by a conflict, nor did he ever waive the conflict. THE LAW The criteria needed to establish a Sixth Amendment violation due to an attorney’s prior relationship with a key prosecution witness are the same as that needed to prove a conflict due to a literary rights agreement. A defendant who did not object to a possible conflict at trial must demonstrate that an actual conflict adversely affected his lawyer’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). The defendant need not prove prejudice. Id. at 349, 100 S.Ct. at 1718. BACKGROUND As discussed above, the trial court expressly found that Charvet’s representation of petitioner would pose a conflict of interest due to Charvet’s prior contact with Munro. Notwithstanding this finding, the trial court allowed Charvet to become counsel for petitioner. Naturally, as the prosecutor predicted [LART A/116], petitioner seized upon this on appeal claiming that his conviction should be reversed due to the conflict. When faced with this issue in Bonin’s direct appeal, the California Supreme Court held that petitioner failed to demonstrate any adverse effect from the conflict. People v. Bonin, 47 Cal.3d 808, 254 Cal.Rptr. 298, 318, 765 P.2d 460, 479 (1989). Charvet, the court observed, conducted a “broad and deep” cross-examination of Munro. Id. The court could neither find, nor conjure up, any error on Charvet’s part which could be attributed to his earlier discussions with Munro. Id. DISCUSSION Having thoroughly reviewed Char-vet’s cross-examination of Munro, the Court agrees with the assessment of the California Supreme Court. Charvet’s questions covered a gamut of possibilities. For example, Charvet pointedly asked Munro whether it was true that he killed Wells. [LART 10/3067]. After Munro denied this, Charvet elicited Munro’s admission that he was present during the murder. [LART 10/3068]. Charvet went on to explore Munro’s numerous inconsistencies related to his role in the murder. Later, Munro admitted that he agreed with Bonin when Bonin asked him if he wanted to pick up a hitchhiker, have sex with him, and kill him. [LART 10/3088]. Charvet altered the scenario a bit by asking Munro if he assisted Bonin in killing Wells or whether Bonin killed Wells alone. [LART 10/3089]. Munro replied that he held Wells’ feet while Bonin killed Wells. In sum, Charvet questioned Munro about the three obvious situations: Munro killed Wells alone, Bonin killed Wells alone, and Bonin and Munro killed Wells together. In addition, Charvet repeatedly attacked Munro’s credibility by highlighting his lies, emphasizing his inconsistencies, and noting his incentives to testify against Bonin. The Court cannot fathom what Charvet may have failed to do as a result of his previous conversations with Munro. Moreover, petitioner has not supplied the Court with any evidence that Charvet’s conversations with Munro had any effect, let alone any adverse effect, on Charvet’s conduct of the trial. Accordingly, there can be no relief on this claim. Issue Six: PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE TRIAL COURT ACCEPTED SUBSTITUTION OF COUNSEL, BUT REFUSED A REASONABLE CONTINUANCE TO PREPARE PETITIONER’S CLAIM Petitioner appears to make two separate claims relating to the start of his trial. First, he argues that he was deprived of the effective assistance of counsel because Charvet took the case without sufficient time to prepare. Second, petitioner claims that the trial court’s denial of a continuance violated his right to due process. THE LAW The Court reviews the denial of a continuance for abuse of discretion. See Armant v. Marquez, 772 F.2d 552, 556 (9th Cir.1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1502, 89 L.Ed.2d 902 (1986). No abuse of discretion will be found unless the reviewing court determines that the denial was arbitrary or unreasonable. See United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.1985). In making its review, the court must focus on the circumstances of the particular case at issue. Id. Four factors are particularly relevant to the inquiry: 1) the diligence of the defendant prior to seeking a continuance; 2) whether the continuance would have served a useful purpose; 3) whether the continuance would inconvenience the court or the prosecution; and 4) the prejudice suffered by defendant due to the denial. See Armant, 772 F.2d at 556-557. While there is no magic formula for weighing the factors, petitioner must show at least some prejudice from the denial. Id. DISCUSSION At the outset, the court notes that neither petitioner nor Charvet formally requested a continuance on October 19, 1981, the day the trial began. There was talk on September 14, 1981 about requesting a continuance and an implied denial by the court. On the day Charvet accepted appointment however, he did not move for a continuance. Nevertheless, for completeness, the Court will analyze this issue as if petitioner had a sought continuance on the date his trial began. Defendant’s Diligence A review of the record shows that petitioner demonstrated not diligence, but rather a desire to postpone his trial. Indeed, the court expressly found that petitioner’s actions were dilatory in nature. Moreover, petitioner expressly requested Charvet’s services despite a warning that Charvet felt he would be better prepared if he had more time. Useful Purpose The continuance would have allowed Charvet more time to prepare for petitioner’s extensive murder trial. On the other hand, petitioner had an attorney, Hanson, who worked on the case for over a year and was fully prepared to proceed with the trial. Inconvenience A further continuance would have greatly inconvenienced, if not harmed, the prosecution. The trial had already been continued twice. Each change necessitated the rescheduling of over one hundred subpoenaed witnesses. Plus, as in any case, memories fade over time. In addition, Orange County could have jumped into the void and tried petitioner first, thus creating an even lengthier delay. Prejudice Petitioner claims that the error and omissions discussed in detail above resulted from Charvet’s lack of preparation time. First, only two of those claims — failure to call a carpet fiber expert and failure to present mitigating evidence — can even remotely be connected to inadequate preparation time. Plus, Charvet had an additional six weeks during the prosecution’s case to prepare the defense. Second, the Court has already found no merit to any of these claims. Finally, having reviewed the entire trial transcripts, the court finds that Char-vet did a constitutionally adequate job of representing petitioner. The evidence was such that an additional 3-4 months of preparation would not likely have changed the results. Conclusion Petitioner has not demonstrated that the trial court abused its discretion in denying petitioner’s implied request for a continuance. The court’s actions were neither arbitrary, nor unreasonable. Char-vet’s decision to take the case without a continuance was not ineffective assistance of counsel since petitioner failed to demonstrate any prejudice from Charvet’s representation. C. CLAIMS INVOLVING PROSECUTORIAL MISCONDUCT Issue Seven: THE PROSECUTION COMMITTED OUTRAGEOUS AND CONSTITUTIONALLY IMPERMISSIBLE CONDUCT BY KNOWINGLY USING PERJURED TESTIMONY TO CONVICT PETITIONER PETITIONER’S CLAIM Petitioner contends that the prosecution knowingly used the perjured testimony of jailhouse informants Jimmy Lee Barnes and Leslie White to convict him. Petitioner bases his perjury allegation against Barnes on a declaration written by Barnes, using a different name, over six years after he testified in the Los Angeles case. Petitioner provides no support for his perjury allegation against White other than that White changed his testimony between his direct examination and his cross examination. THE LAW If a prosecutor knowingly uses perjured testimony or knowingly fails to disclose that testimony used was false, then a conviction must be set aside if “there is any reasonable likelihood that the false testimony could have affected the jury verdict.” United States v. Endicott, 869 F.2d 452, 455 (9th Cir.1989), citing, United States v. Bagley, 473 U.S. 667, 678-80, 105 S.Ct. 3375, 3381-82, 87 L.Ed.2d 481 (1985). DISCUSSION Jimmy Lee Barnes The prosecution called Barnes as a witness near the end of the Los Angeles trial. Barnes’ direct testimony covered only 6 pages out of approximately 2500 pages of prosecution testimony. [LART 14/4231-4236]. Of significance, Barnes testified that petitioner told him he had sex with little boys then killed them and threw their bodies away. Barnes neither provided names nor details about any murders. This testimony could hardly be deemed crucial to the prosecution’s case since four other witnesses—Fraser, Pendleton, Douglas, and Lopez—also testified that Bonin confessed to murdering one or more young males. Moreover, the jury had ample reason to discredit Barnes’ testimony. For example, Barnes connected petitioner with ownership of motorcycles and with “a glass of snot with ice cubes in it.” No other witness mentioned either of those subjects. Also, Barnes admitted that he was facing three counts of murder, as well as charges of kidnapping, robbery, and burglary. Finally, the prosecutor mentioned Barnes’ testimony only once in his closing argument. Specifically, the prosecutor recalled that petitioner admitted to Barnes that he did what he was accused of, but that the prosecution would never be able to prove it. [LART 16/4726]. In total, the prosecutor mentioned Barnes in two sentences out of over 180 pages of closing argument. Having reviewed Barnes’ testimony in the context of all of the evidence presented at petitioner’s trial, the Court concludes that even if petitioner could prove that Barnes lied, there is no reasonable likelihood that Barnes’ testimony affected the jury verdict. Leslie White White, a jail inmate, was called as a witness by the defense. [LART 15/4373]. White told the jury that Lloyd Carlo Douglas insinuated to him that he had lied at Bonin’s preliminary hearing. Douglas, according to White, said he did not want to testify and he was hoping to find an inmate to testify contrary to his testimony at the trial. Later, during cross-examination, White stated that he lied during his direct examination and that he made up the testimony about Douglas because petitioner offered to pay him. [LART 15/4381]. It is clear that White’s testimony was collateral to the relevant issue of petitioner’s guilt or innocence. White did not link petitioner to any of the crimes for which petitioner was being tried. Charvet, in fact, used White’s performance to illustrate for the jury the problems associated with the use of jailhouse informants. [LART 16/4872-4874]. Once again, even if petitioner demonstrated that White perjured himself, the Court finds no reasonable probability that the jury verdicts would have been different without White’s testimony. Issue Eight: PETITIONER WAS DEPRIVED OF DUE PROCESS WHEN THE PROSECUTION INDUCED PETITIONER TO MAKE STATEMENTS WHICH WERE USED TO FURTHER THE PROSECUTION’S CASE PETITIONER’S CLAIM According to petitioner, the prosecution encouraged him to make a statement to allow the prosecution to decide whether to seek the death penalty. After promising not to use petitioner’s statements in criminal proceedings against him or anyone else, the prosecution used petitioner’s statements to bargain with petitioner’s co-defendants, Greg Miley and James Munro. Ultimately, Miley and Munro agreed to plead guilty and testify against petitioner. Petitioner believes that the prosecution’s use of his statements to negotiate with Miley and Munro denied him his right to due process and a reliable death verdict. BACKGROUND The Meeting Petitioner, his then-attorney Earl Hanson, the Los Angeles prosecutor Sterling Norris, and several law enforcement officers met for a tape-recorded meeting on December 17, 1980. The tape revealed the following relevant information: At the outset of the meeting, Norris stated that petitioner sought the meeting to convince the prosecution to allow him to plead guilty to first degree murder in exchange for a sentence of life in prison without the possibility of parole. Norris told petitioner that he would consider his offer, but the only promise he could make was that the prosecution would “not use anything you say in evidence against you, anything that you say here tonight in evidence against you in any criminal proceeding unless we can promise you no death penalty.” Petitioner and Hanson both said they understood that. Petitioner questioned what would happen in the other counties if Los Angeles accepted his deal. Norris replied that petitioner’s statements would not be used as evidence in any criminal proceeding in any county. While clarifying Norris’ statements, Hansen reiterated petitioner’s concern that any statements he made not be used in any criminal proceeding or any court in any county. Norris again announced that petitioner’s statements would not be used in any criminal proceeding. After this preliminary discussion, petitioner proceeded to give an extensive account of the murders with which he was involved. In doing so, Bonin implicated two of his co-defendants, Miley and Munro. The Challenge Prior to trial, petitioner challenged the circuitous use which the prosecution made of his statements. [LART 6/1788]. The prosecutor, as part of his discovery obligation, gave Miley’s attorney and Munro’s attorney, a copy of Bonin’s statement. [LART 6/1791]. The statement, implicating both Miley and Munro, induced them, at least in part, to plead guilty and testify against Bonin. [LART 6/1882-1835, 1855-1856]. Bonin argued that releasing the tape (or its transcript) to Miley and Munro violated the agreement the prosecutor made at the time petitioner gave his statement. The Trial Court Ruling The judge interpreted the prosecutor’s agreement as meaning that the prosecution would never introduce into evidence the tape, or any part of the tape, of Bonin’s statement. [LART 6/1880]. The agreement did not cover the situation that ultimately developed. For that reason, the judge denied Bonin’s motion to dismiss the information or suppress the testimony of Miley and Munro on grounds of prosecuto-rial misconduct. The Ruling of the California Supreme Court On appeal, the California Supreme Court upheld the trial court’s ruling. See People v. Bonin, 47 Cal.3d 808, 254 Cal.Rptr. 298, 320, 765 P.2d 460, 482 (1989). After reviewing the evidence, the Supreme Court found that “the prosecution did not use defendant’s statements to obtain the agreement of Munro and Miley to testify against him at trial.” Id. DISCUSSION The Court finds a number of factors to be of importance in resolving this issue. First, petitioner sought the meeting with the prosecution; the prosecution did not approach petitioner. This dispels any notion that the prosecution coerced petitioner to speak. Second, despite petitioner’s attempts at equating this situation with immunity, there was no formal immunity offered in this case. Instead, the prosecutor orally promised not to use petitioner’s statement against him as evidence in any criminal proceeding in any court. That was the only limitation placed upon the prosecution’s use of petitioner’s statement. Third, the prosecutor resisted turning the taped statement over to the attorneys for Miley and Munro. Initially, the prosecutor believed that petitioner’s statement was not discoverable because the statement was inculpatory rather than exculpatory. [LART 6/1868]. An attorney for a co-defendant realized, however, that the statement would be helpful because it showed that the co-defendants were less culpable than petitioner. [LART 6/1869]. The prosecutor went to court to keep from turning over the statement to Munro’s attorney. [LART 6/1870]. The court ruled that the statement was discoverable, thus the prosecutor had to make a copy for Munro’s attorney. Id. Similarly, the court ruled that the prosecutor had to allow Mi-ley’s attorney to listen to the taped statement. Id. Fourth, the state court’s factual finding that the prosecution did not use petitioner’s statements to obtain the testimony of Miley and Munro is entitled to a presumption of correctness. See 28 U.S.C. § 2254(d). The court’s conclusion has support in the record. In response to questioning from Charvet, Munro testified that Bonin’s statement was just one of several reasons why he agreed to plead guilty and testify against Bonin. [LART 6/1835]. Munro also testified that he feared the death penalty [LART 6/1835] and he was concerned because he talked to two informants at the jail and they were prepared to testify against him. [LART 6/1841-1842]. Similarly, Miley merely agreed that one of the reasons he pled guilty was because he knew about Bonin’s statements. [LART 6/1856]. Of significance, neither Miley nor Munro read the transcript or listened to the tape of Bonin’s statement. The Court concludes that giving the statement to Miley and Munro did not violate due process. Strictly speaking, the prosecution did not use petitioner’s statements in a court proceeding; therefore, no promise was broken. Plea bargaining and its attendant negotiations are an integral part of the criminal justice system, as are discovery obligations. The prosecution must not be punished, and petitioner rewarded, because the prosecution performed these functions. Any harm accruing to petitioner, and the Court questions what harm there was since Miley and Munro had other reasons for agreeing to a plea bargain, stems from petitioner's attempt to negotiate with the prosecution and not from any unconstitutional action on the part of t