Full opinion text
DEATH PENALTY CASE ORDER DENYING AMENDED PETITION FOR A WRIT OF HABEAS CORPUS COYLE, Chief Judge. I. Introduction Petitioner, Keith Daniel Williams, filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his state court conviction on three counts of first degree murder with special circumstances, and his death sentence. Petitioner sets forth nineteen claims of alleged federal constitutional error which he contends require a reversal of his guilt, sanity, and/or penalty phase verdicts. Petitioner requested an evidentiary hearing on Claims A, B, C, E, F, G, H, and I. The court granted and conducted an eviden-tiary hearing on Claim A. After careful review of each claim presented in the amended petition and all supporting documentation, including the entire state court record, all papers filed by the parties, and the evidence presented at the evidentia-ry hearing, the court finds that no claim submitted by Petitioner warrants federal ha-beas relief. Accordingly, the amended petition for a writ of habeas corpus is denied as set forth herein. II. Facts This case involves the shooting deaths of Lourdes Meza (Meza), Miguel Vargas (M. Vargas), and Salvador Vargas (S. Vargas) by Petitioner. The events leading up to the killings began on Friday, October 6, 1978, when Petitioner met Meza and M. Vargas at a yard sale at the Galt home of Robert Tyson (Tyson) and Karen Tyson (K. Tyson). At the yard sale, Petitioner, having noticed and admired M. Vargas’ car, expressed a desire to purchase it. Petitioner subsequently obtained M. Vargas’ permission to test drive the car. After the test drive, Petitioner reiterated his interest in buying the car. The sale, however, was not consummated that day. While subsequently informing the Tysons of his intent to purchase the vehicle, Petitioner commented that he had discovered the automobile registration in the glove box during his test drive. He surmised that it would be easy to obtain possession of the car and registration by loading Meza and M. Vargas in the trunk and dumping them in a field. On Saturday, October 7, 1978, M. Vargas returned to the Tysons’ home to consummate the sale of the car. Petitioner passed a stolen check in the amount of $1,500 to M. Vargas and took possession of the car. The parties agreed that M. Vargas would retain the registration until Petitioner’s ■ check cleared the following Monday. Later on October 7th, M. Vargas returned to the Tysons’ home displaying a “wad” of bills and offering to purchase a gun from Petitioner. Petitioner declined to- sell the gun at that time. However, the parties discussed the possibility of a subsequent meeting at M. Vargas’ home regarding-the sale of the gun. The next day, Sunday, October 8, 1978, Petitioner and Tyson, armed with handguns, drove from Galt to the Merced farmhouse in which M. Vargas lived with Meza and his cousin S. Vargas. Petitioner’s intent in trav-elling to Merced was to commit robbery; he had also discussed killing M. Vargas and Meza. Upon arriving at the farmhouse, Petitioner and Tyson discovered that guests were visiting their intended victims. Consequently, Petitioner and Tyson temporarily postponed their felonious plans, left their guns in the car, and joined the others in the house. They found M. Vargas and Meza downstairs entertaining three visitors. S. Vargas had already retired upstairs to rest. After the guests departed, M. Vargas re-expressed his interest in buying Petitioner’s gun. Petitioner and Tyson then exited the house and retrieved their guns from the car. Upon re-entering the house Petitioner held his gun on M. Vargas. M. Vargas thought Petitioner was joking, and Tyson reinforced this misperception by pulling away Petitioner’s arm. Tyson later justified this interruption of Petitioner’s actions, informing Petitioner that his own gun was not loaded and reminding him that S. Vargas was sleeping upstairs. Shortly after this incident, Petitioner invited M. Vargas to join Tyson and him for a drink. When M. Vargas declined, Tyson, suggested that Petitioner and he buy some beer and bring it back to the farmhouse. Petitioner and Tyson then left the farmhouse' on the pretext of buying beer; they used this time to discuss strategy. When Petitioner and Tyson subsequently re-entered the farmhouse they found M. Vargas downstairs and S. Vargas ,and Meza upstairs. Petitioner put the plan in action, running to the second floor and ordering Tyson to bring M. Vargas upstairs and take Meza downstairs and shoot her. ■ After Tyson and Meza went downstairs, Petitioner shot both men in the back of the head, killing them. Tyson, however, did not shoot Meza. Instead, he and Petitioner took her from the farmhouse and drove toward Sonora. En- route, Petitioner had intercourse with Meza. Upon reaching an unpopulated area, Petitioner and Meza. exited the car. They walked to a field a short distance away where Petitioner shot Meza four times and left. Petitioner and Tyson then returned to'Galt; Tyson remained in Galt, while Petitioner headed for Southern California. The next'day, Monday, October 9, 1978, a relative of the slain men discovered their bodies lying in a pool of blood. Authorities did not locate Petitioner’s, third victim until Friday, October 13, 1978, when Tyson surrendered and led them to Meza’s naked body in a secluded, area near Sonora. The state charged' Petitioner with 'three counts of first degree murder with firearm enhancements and ten special circumstances, including multiple murder, robbery, kidnapping, and rape. After a three and one-half week trial, the jury found Petitioner guilty of murdering M. Vargas, S. Vargas, and Meza in the first degree. The jury also determined that Petitioner was sane during the commission of the offenses, and recommended the death sentence. The California Supreme Court affirmed Petitioner’s conviction and sentence and denied his first habeas corpus petition on March 24, 1988. Williams, 44 Cal.3d 883, 245 Cal.Rptr. 336, 751 P.2d 395. The court summarily denied his second habeas petition on February 17, 1989. Petitioner’s conviction became final on October 11, 1988, upon the Supreme 'Court’s denial of his petition for a writ of certiorari. III. Discussion A. Claim A Petitioner alleges that prosecutorial misconduct during the guilt phase of his trial resulted in the violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Specifically, Petitioner claims that the prosecutor, Larry Howard (L. Howard), violated his right to due process by failing to correct Tyson’s testimony, which he knew to be per-jurious, and that the guilt and penalty phase verdicts must, therefore, be reversed. At Petitioner’s trial, Tyson testified as follows: Q [L. Howard]: [D]id I or anyone from the district attorney’s office make any promises with respect to any charges that would be filed against you? A: No. I was told that whatever was ■ filed against me would be up to the grand jury. Q: Have any promises been made to you as far as you’re concerned for your testimony here today? A: None. RT Vol. V 1004:18-25 (emphasis added). Tyson further testified on cross-examination: Q [Roland Howard]: At the time you appeared in Superior Court to be sentenced for the three murders that you were convicted of, didn’t you have discussions with the district attorney’s office regarding what disposition of your case in terms of sentence would be made in terms of their recommendation of sentence at the time? A: No. Q: In exchange for your cooperation. A: No. RT Vol. V 1009:16-24. The court conducted an- evidentiary hearing on Claim A, limited to the issue of Tyson’s alleged perjury at Petitioner’s trial and the prosecutor’s knowing use thereof. A claim of prosecutorial misconduct must be demonstrated by a preponderance of the evidence. United States v. Lord, 711 F.2d 887, 891 & n. 3 (9th Cir.1988). Petitioner has not satisfied this standard. 1. The Asserted Parole Deal Petitioner contends that the first alleged deal consisted of the prosecution’s promise that it would not oppose Tyson’s parole if he testified at Petitioner’s trial. This deal was allegedly consummated at the Merced County Court Building on March 22, 1979, just prior to Tyson’s testimony in Petitioner’s case. Although Tyson apparently first alleged the existence of this deal at his October 2, 1986, parole consideration hearing, Petitioner learned of this deal on October 28,1988, when his present counsel, David Nickerson, and his investigator, Russell Stet-' ler, interviewed Tyson in prison. During that interview, Tyson “was asked if he had made any deals or agreements with the prosecution in exchange for his testimony at WILLIAMS’ trial. Tyson said he had.” 2PHC Exh. D Stetler Deck ¶ 5. The investigator relayed Tyson’s account of that deal as follows: [a]fter his own conviction of an indeterminate sentence, Tyson was contacted by Merced detectives, including Ron Hauser, and the prosecuting attorney, Larry Howard. Mr. Howard told Tyson, “We can make sure you rot in prison.” District Attorney Howard then explained that if Tyson agreed to testify against WILLIAMS, the Merced County District Attorney’s Office would not oppose Tyson’s release when he became eligible for parole. Tyson was assured that if he testified against WILLIAMS the District Attorney would “make sure the [Parole] Board knew” about his cooperation. Tyson agreed to testify against Williams. Id. Petitioner argues that Tyson’s testimony, as set forth in the October 2, 1986, Request for Investigation, and as given at the October 27, 1987, parole consideration hearing and the evidentiary hearing, demonstrate the existence of this deal. Petitioner further argues that L. Howard’s deposition testimony supports a finding that this deal existed. The court is not persuaded. First, Tyson conceded at the evidentiary hearing that the prosecutor made no promises in exchange for his testimony at Petitioner’s trial: A: His [L. Howard’s] words to my best recollection was that if you do—“If you don’t [testify], we can keep you in for a long time, but if you do, we can endorse you to get a parole date.” He says, “I can’t promise you nothing right now.” Q [Robert Jibson]: Isn’t it true, Mr. Tyson, that in fact the district attorney, Mr. Howard, during this brief meeting that you’ve referred to specifically told you that he could not make you and was not making you any promises at that time? A: He said he couldn’t right then. Q: He said he was not making a promise; is that correct? A: He said he couldn’t, yes. Q: The answer is yes? A: (Witness nods head.) EH 8:22-9:1; 12:21-13:7. Second, the Board of Prison Terms (Board), conducted an investigation designed to determine “what type of ‘deal’ was arranged for Mr. Tyson’s cooperation in the Keith Daniel Williams case,” PEH Exh. 2 1, and concluded that the alleged parole deal did not exist. Id. at 3. Finally, the prosecutor has consistently denied making a promise to Tyson in exchange for his testimony. Ans.Exh. I L. Howard Deck ¶ 2; PEH Exh. 3 6:17-7:19; 20:8-14. Instead, the prosecutor describes the following interaction with Tyson regarding the alleged parole deal: I did not threaten Mr. Tyson that the District Attorney’s Office or law enforcement agencies could make sure he would “rot in prison” in order to obtain Mr. Tyson’s testimony at Mr. Williams’ trial, nor did I promise Mr. Tyson that if he testified against Mr. Williams the District Attorney’s Office would not oppose Mr. Tyson’s early release on parole when Mr. Tyson became eligible for parole. I did advise Mr. Tyson that his testimony at Mr. Williams’ trial would be a matter of public record, and as such he could bring the record of his testimony for the People to the attention of the Parole Board for their consideration and also to the attention of correctional authorities for their consideration for protective custody because of that testimony. Ans. Exh. I L. Howard Decl. ¶¶3-4. Thus, Petitioner has failed to set forth sufficient evidence demonstrating the existence of a parole deal. Neither party to the alleged deal, nor the Board has acknowledged the existence of this deal. Accordingly, the court finds that Tyson’s testimony was not perjurious, and denies relief as to this aspect of Claim A. 2. The Asserted Death Penalty Deal Just prior to the evidentiary hearing, Petitioner asserted the existence of an additional deal. Tyson and L. Howard allegedly entered into this deal on October 13, 1978, the day Tyson surrendered and assisted the authorities in their search for Meza’s body. Petitioner alleges that during the search, L. Howard promised Tyson that the District Attorney’s Office would not seek the death penalty against him if Tyson agreed to testify at Petitioner’s trial. Petitioner discovered the existence of this alleged deal when his counsel deposed L. Howard in preparation for the evidentiary hearing. Petitioner asserts that the Board’s Report of Investigation, the testimony of Deputy District Attorney Gordon Spencer (Spencer) at Tyson’s October 27, 1987, parole consideration hearing, and the deposition testimony of L. Howard all support the existence of this deal. The court disagrees. Tyson has never claimed that this deal existed. In fact, Tyson specifically rejected the e?dstence of this deal at his October 27, 1987, parole consideration hearing when he testified, “[u]h, there was no promise before I went to trial I, I made none because he [Petitioner] was not even in custody when the grand jury indicted me.” PEH Exh. 1 79:18-21. The prosecutor also denied making this promise to Tyson in exchange for his testimony: Q [David Nickerson]: There wasn’t a deal made prior to Tyson’s trial that, for instance, for his testimony against Williams he would get — he would plead to X offense and get X years? A: No. Q: There was no such deal like that. A: No. Q: Was one offered, do you remember? A: No. Q: None was offered. A: That’s right. PEH Exh. 3 19:3-13. According to L. Howard, the following conversation transpired on the occasion in question: Q [Robert Jibson]: ... what was said if anything, for example, by you, first of all, to Mr. Tyson with regard to the death penalty? A: The only thing that I recall telling Tyson was that I told him that he was— asked him, really, if he was willing to testify. And he was very blunt. He said, “Sure. I’ll do anything.” And I said, “Is what you have told the investigators the truth?” And he said, “Yes.” And I said, “Do you understand that we have to do some investigating and check out what you’re saying to us? But if what you’re saying is corroborated by what we find out, then we’ll not seek the death penalty.” Q: ... under the 1977 death penalty law intent to kill, in fact, premeditation and deliberation were legally required to prove special circumstances, correct? A: That’s true. Q: ... you couldn’t have sought the death penalty against him and you were telling him as such if the story he told you was true; is that right? A: Yes. Id. at 9:10-10:8; 11:6-9; 11:14-18. . Thus, this alleged deal did not exist. The prosecutor did not make a promise to Tyson, he merely explained the law with regard to Tyson’s actions on the assumption that Tyson’s rendition of the events would be corroborated by the ensuing investigation. Accordingly, because Tyson’s statement that the prosecution made no promises to him in exchange for his testimony was not perjurious, relief as to Claim A is denied. B. Claim B Petitioner alleges that his trial counsel violated his Sixth, Eighth, and Fourteenth Amendment rights by failing to adequately investigate facts in support of his diminished capacity and insanity defenses, and in mitigation of penalty. Petitioner further alleges that counsel erred by failing to move to suppress or object to Petitioner’s alleged pre-Miranda remarks to arresting officers in Arizona, to the testimony of Tyson and K. Tyson, to the court’s M’Naghten insanity instruction, to the introduction of evidence regarding Petitioner’s prior criminal record, to the appointment of psychiatrists for the dual purpose of determining Petitioner’s sanity and his competency to stand trial, by reading the psychiatrists’ reports directly into the record during the sanity phase, and by failing to request an instruction limiting the scope of the jury’s consideration of said psychiatric reports. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated the test used to determine whether a petitioner received ineffective assistance of counsel: [a] convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made' errors so serious that counsel was not functioning as the “counsel” guaranteed the. defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687, 104 S.Ct. at 2064. A court may dispose of an ineffectiveness claim if either prong of the test is not met. Id. at 697, 104 S.Ct. at 2069. 1. Failure to Investigate a. Guilt Phase — Diminished Capacity Defense Petitioner alleges ineffective assistance of counsel at the guilt phase because his trial counsel had'no knowledge of Cal.Pénal Code § 987.9, and because he failed to adequately investigate facts in support of a diminished capacity defense. Petitioner contends it is reasonably probable that, but for these alleged errors, the jury would have returned a verdict of not true on the special circumstances, of a lesser degree of homicide, or of not guilty. The court wholeheartedly disagrees. A reviewing court must consider the totality of the evidence when making a determination of prejudice. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068. The effect of the alleged errors on the factual findings may vary. As the Supreme Court has determined: [s]ome of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have a pervasive effect ... and some will have an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Id. Despite Petitioner’s assertion that he suffered prejudice due to counsel’s alleged failure to investigate his diminished capacity defense, the record overwhelmingly establishes the contrary. For example, although Petitioner testified that he had ingested a significant amount of drugs and alcohol on the day of the murders, and that his memory of the killings was intermittent, RT Vol. VI 1323:17-19, these self-serving statements fundamentally differ from the wealth of details Petitioner provided in his taped confession six weeks after the murders, his trial testimony more than five months after the murders, the details set forth in the testimony of Tyson and K. Tyson, and the expert psychiatric opinion of Dr. Max Bran-nan. Thus, clear and overwhelming evidence established that Petitioner was lucid, not intoxicated, and not suffering from a diminished capacity at the time he committed the crimes. These factual findings were unaffected by counsel’s alleged failure to investigate the diminished capacity defense. Furthermore, it is the court’s determination that such findings remain unaffected notwithstanding the mental profile currently presented by Petitioner. It is not reasonably probable that, but for the alleged errors, the jury would have reached a different verdict. Accordingly, relief is denied as to this portion of Claim B. b. Sanity Phase — Insanity Defense Petitioner alleges ineffective assistance of counsel at the sanity phase of his trial because his attorney failed to adequately investigate facts in support of his not guilty by reason of insanity plea. Counsel presented no sanity phase witnesses. Instead, Petitioner’s attorney simply read the reports of the two court-appointed psychiatrists and the results of Petitioner’s EEG into the record. Both psychiatrists concluded that Petitioner was sane. The results of the EEG were normal. The record, does not support Petitioner’s supposition that, but for counsel’s alleged error, it is reasonably probable the jury would have found him not guilty by reason of insanity. A criminal defendant has the burden of proving insanity by a preponderance of the evidence. Cal.Evid.Code §§ 115, 522. Petitioner has presented no -evidence demonstrating that he could have met this burden. Consequently, it cannot be said that he suffered prejudice due to counsel’s failure to investigate an insanity defense. Accordingly, this argument fails. c. Penalty Phase — Mitigating Evidence Petitioner alleges that his counsel rendered ineffective assistance at the penalty phase of his trial by failing to investigate and present facts in mitigation of the death penalty. Petitioner contends' that counsel failed to discuss the penalty phase with him, and to present family members and friends to testify on Petitioner’s behalf. Petitioner alleges that prejudice resulted from counsel’s foregoing errors because certain available mitigating evidence was not presented to the jury, namely Petitioner’s: (1) previous psychiatric treatment, including a voluntary admission to Clairemont Hospital (see supra note 13); (2) untreated hyperactivity as a child; (3) illegitimate birth; ' (4) poor childhood homelife, including an alcoholic mother and a mentally and physically abusive stepfather; and (5) failure to complete high school. Petitioner further contends that his mother, Lucille Smith, his step-sisters, Christine Smith and Kirby Smith Touvell, his daughter, Celeste, his step-son, Edward, and his friends Mary Begley, and Jean and Ron Torrey, would have testified favorably as to his character and personal history, and pleaded for his life. The court finds that Petitioner suffered no prejudice as a result of counsel’s alleged failure to investigate mitigating evidence. Petitioner argues that certain mitigating evidence was not presented to the jury. However, the jury was exposed to much of the evidence which he complains was omitted due to counsel’s error.. For example, although Petitioner complains that evidence regarding his short-term voluntary admission to Claire-mont Hospital for psychiatric care was not before the jury, he ignores the fact that the jury was aware of a voluntary, three-month admission to the Scripps-Howard Institute for psychiatric care. RT Vol. VI 1356:8-19; RT Vol, VII 1522:10-13; 1525:2-5; 1534:11-14. Furthermore, the jury had evidence that Petitioner was illegitimate, RT Vol. VII 1523:6; 1532:22, had an unhappy childhood, including an abusive step-father and an alcoholic mother, id. at 1523:11; 1523:19; 1524:14-15; 1526:17-18; 1532:27-1533:2; 1533:10-11, ran away from home, id. at 1524:14-15; 1533:27-28, did not finish school, id. at 1523:15-18; 1533:7-12, suffered head injuries as a youth, RT Vol. VI 1172:13-25; RT Vol. VII 1534:8-10, abused drugs and alcohol from a very young age, RT Vol. VI 1173:1-1175:26; 1177:8-23; 1181:7-1188:18; 1190:5-15; 1192:26-1196:8; .1213:24-1214:2; RT Vol. VII 1524:2-9; 1535:1-4, had been treated for epileptic seizures, • RT Vol. VI 1171:16-1172:8; 1180:3-7; 1356:19-22; RT Vol. VII 1522:10-16; 1525:14-22; 1534:15-21, and had suffered blackouts. RT Vol. VI 1356:23-27; RT Vol. VII 1525:6-8. As sympathetic as are these mitigating factors and those few mentioned by Petitioner but not heard by the jury, they are simply overwhelmed by the aggravating factors that exist in this case. Undoubtedly, Petitioner’s commission of multiple murders during the course of a felony, his prior criminal activity involving the threat, use, or attempted use of force or violence, and Dr. Bran-nan’s testimony that Petitioner was a sociopath and suffered no remorse, RT Vol. VI 1350:3-18, echoed so loudly in the minds of the jurors as to render them nearly deaf to the minuscule rustling of any mitigating evidence. Thus, it is not reasonably probable that the evidence presented by Petitioner to which the jury was not exposed would have affected the jury’s consideration of the aggravating and mitigating circumstances sufficient to lead to a verdict other than death. Accordingly, this argument fails. 2. Petitioner’s Confessions The record indicates that Petitioner made two taped confessions, one to the arresting Arizona deputies at 4:00 a.m. on November 24, 1978, prior to the arrival of the California law enforcement officers, RT Vol. V 1119:5-8; ROSC Exh. 2; Williams, 44 Cal.3d at 920, 245 Cal.Rptr. 336, 751 P.2d 395, and a second one to the California officers at approximately 11:00 p.m. on the same day. CT Vol. 1 162,188; RT Vol. V 1105:13-24; Trial Exh. 39. See infra note 26. The court admitted only the latter tape into evidence. Petitioner contends that his counsel was ineffective at the guilt and penalty phases because he failed to move to suppress statements made following his arrest. Petitioner asserts that because the state court record is silent as to whether the arresting Arizona officers Mirandized Petitioner prior to his initial interrogation and confession, a waiver of Miranda rights cannot be assumed and, pursuant to Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the subsequent interrogation by California officers is tainted regardless of any amendatory Miranda, warning. Petitioner’s contention is without merit. The transcript of his first confession and the tape recording of the second confession clearly demonstrate that Petitioner was warned of, and waived, his Miranda rights. See also CT Vol. I 1164; RT Vol. V 1106:8-26; Williams, 44 Cal.3d at 920, 245 Cal.Rptr. 336, 751 P.2d 395. Moreover, even if Petitioner had not been advised of his federal constitutional rights prior to the first confession, such an error has no impact on the validity of the second, properly Mirandized, confession. Westover is not to the contrary. Accordingly, because Petitioner’s trial counsel committed no error by failing to file a formal motion to suppress Petitioner’s statement on Miranda grounds, this argument fails. 3. The Tysons’ Testimony Tyson and K. Tyson testified against Petitioner at his trial. Petitioner now claims his trial counsel’s failure to move to suppress the Tysons’ testimony constitutes ineffective assistance at the guilt and penalty phases of his trial. Petitioner contends that the Tysons’ testimony was “procured by unlawful police conduct and thus involuntary.” Pet. 44:21-22. Specifically, Petitioner asserts that officers conducted a nonconsensual, warrantless search of the Tysons’ home, and that their threats to unlawfully arrest K. Tyson and take away her kids caused Tyson to surrender. Factual determinations made by the state court are entitled to a presumption of correctness. 28 U.S.C. § 2254(d). ■ The factual determinations made by the California Supreme Court simply do not support Petitioner’s assertions of an illegal search or of threats made to K. Tyson. As that court found: Karen telephoned a Stockton police officer from a telephone booth on Thursday, October 12, told the officer that she was with Tyson, and had talked him into surrendering on Friday. The affidavit in support of the complaint recites that Officers Harris and Hauser met with Karen at the Tyson home where she said she wanted to tell them everything. There is no support in this document or in Karen’s testimony for defendant’s claim that the officers’ entry was nonconsensual, that a search of the home was conducted at this time, or that if such search was undertaken it was without Karen’s consent. Tyson testified that when he met secretly with Karen prior to surrendering she told him that police officers had searched the house and had said that she could be arrested and prosecuted for aiding, abetting, being an accessory after the fact and for receiving stolen property. She told him that these officers, Harris and Hauser, had promised protection for her and her children if he surrendered. Again, nothing in this testimony supports the assertion that a search was conducted without a warrant or consent, that Karen was threatened, or that either her cooperation or her testimony was involuntary ... ... Williams, 44 Cal.3d at 919-20 & nn. 16-17, 245 Cal.Rptr. 336, 751 P.2d 395. The Williams court further noted that evidence supplied by Respondent in response to this claim refuted Petitioner’s allegations: [in] an excerpt from the reporter’s transcript of the trial of Tyson ... Tyson confirmed that he had decided to give himself up and contacted Karen who said that she did not want ■ to run. He therefore instructed her to get in touch with a detective he had met in the sheriffs office in Stockton. Id. at 921, 245 Cal.Rptr. 336, 751 P.2d 395. See also ROSC Exh. 3 526:15-527:19. Accordingly, as there existed no factual basis for a motion to suppress the Tysons’ testimony, Petitioner’s trial counsel was not remiss in failing to make a futile motion. 4. The M’Naghten Instruction Petitioner asserts that his counsel’s failure to object to the trial court’s M’Naghten instruction constituted ineffective assistance of counsel at the sanity phase of the trial. This claim is without merit. As discussed infra § III(J), although the trial court erred by including this instruction, such error did not violate due process. Moreover, as discussed supra § 111(B)(1)(b), sufficient evidence of Petitioner’s insanity is lacking. Consequently, it cannot be said that, but for the counsel’s failure to object to this instruction, the jury would have found Petitioner insane. 5. Petitioner’s Prior Criminal Record Petitioner contends that counsel’s failure to move to exclude or to object to the admission of evidence regarding his prior criminal record constituted ineffective assistance of counsel at the guilt and penalty phases of his trial. Petitioner’s trial counsel elicited testimony from Petitioner regarding his prior convictions for grand theft, assault with a deadly weapon, and transportation of a stolen vehicle across state lines. RT Vol. VI 1188:22-1189:25. In addition, the prosecutor elicited testimony regarding an uncharged escape. RT Vol. VI 1217:25-26. Petitioner’s trial counsel believed that Petitioner’s prior convictions were admissible to impeach his credibility. Accordingly, he “decided to bring out those convictions on direct examination so as to limit their potential impact on the jury.” PX Exh. C R. Howard Decl. ¶ 18. Trial counsel “álso believed that all of WILLIAMS’ prior convictions were relevant to the diminished capacity defense in that each occurred during or following a period of drug or alcohol abuse.” Id. at 6:2-4. This statement is in keeping with the Settled Statement signed by Petitioner’s ■ counsel, the prosecutor, and the trial judge, which reveals that “[a] Beagle[] objection was not made, nor was the motion filed because of the trial strategy on the part of Defendant’s counsel.” SS 2:27-3:1. Petitioner now argues that, had trial counsel moved to bar admission of evidence of his prior convictions and the uncharged escape, it is reasonably likely that such a motion would have been granted because “[u]nder applicable California standards, Defendant’s prior convictions were remote and irrelevant to any of the factual issues in dispute at trial [and] ... were highly prejudicial to Petitioner’s defense.” Pet. 49:17-24. The failure of Petitioner’s trial counsel to move to suppress or to object to the admission of those prior convictions which involved an element of dishonesty was not error. California law provided for the admission of such evidence to impeach a felon-witness. Federal law is in accord. Fed.R.Evid. 609(a)(2). Furthermore, with regard to those prior convictions which do not involve an element of dishonesty, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. at 2066. Petitioner has failed to demonstrate that counsel’s strategy in introducing said convictions was not sound. As noted, counsel set forth Petitioner’s criminal background to demonstrate that mental illness, defect or disease, or drug intoxication reduced Petitioner’s capacity to harbor the specific mental elements of the charged offenses. Given the difficult factual circumstances with which counsel was confronted, the court finds this strategy reasonable and counsel’s performance adequate under the Constitution. Even if the court were to find counsel’s performance constitutionally inadequate, Petitioner was not prejudiced thereby. Petitioner testified to killing his three victims. Furthermore, the prosecution played the audio tape of Petitioner’s confession for the jury. Thus, the jury heard overwhelming evidence of the fact and manner of the three murders. The nature of Petitioner’s prior criminal record simply pales in comparison to the egregious facts surrounding this triple-murder. As a result, it simply is not reasonably probable that, but for counsel’s alleged errors, the result of the guilt or penalty phases would have been different. 6. Dual Purpose of Psychiatrists’ Appointment Petitioner argues that counsel’s failure to move or object to the appointment of psychiatrists for the dual purpose of determining Petitioner’s competency and sanity constituted ineffective assistance of counsel because it precipitated the introduction and admission of statements made during the competency evaluation which were excludable. Incriminating statements made during a court-ordered competency examination are subject to exclusion. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). See also People v. Arcega, 32 Cal.3d 504, 521-22, 186 Cal.Rptr. 94, 651 P.2d 338 (1982); Tarantino v. Superior Court, 48 Cal. App.3d 465, 469-470, 122 Cal.Rptr. 61 (1975). On the other hand, incriminating statements made during a voluntary psychiatric examination held for the purpose of establishing a diminished capacity or insanity defense are not compelled within the meaning of the Fifth Amendment. Petitioner’s argument that counsel failed to render effective assistance for failing to object to the bases for the appointment of the psychiatrists is without merit. First, although the trial court checked every box on the appointment form, CT Vol. I 194; RT Vol. I 13:14, Petitioner’s competency to stand trial was never seriously in issue. Williams, 44 Cal.3d at 933, 245 Cal.Rptr. 336, 751 P.2d 395. See also ROSC Exh. 1 4:14-17. This is evidenced by, inter alia, the fact that proceedings pursuant to Cal.Penal Code §§ 1368-1369 were not invoked. Consequently, counsel’s failure to object to the “dual” appointment was not error. Second, assuming, arguendo, that error occurred, no prejudice resulted therefrom. Petitioner identifies no portion of the record where information regarding competency, but not pertaining to diminished capacity or insanity, was admitted. In fact, Petitioner points to no competency examination statements that were introduced into evidence despite being excludable. Consequently, it is not reasonably probable that, but for counsel’s alleged error, the jury would have reached a different result at any phase of the trial. Accordingly, this argument fails. 7. Psychiatric Reports; Limiting Instruction Petitioner alleges ineffective assistance due to his counsel’s reading of the unredacted psychiatrists’ reports at the sanity phase. He further alleges error in the penalty phase resulting from counsel’s failure to request a limiting instruction to the effect that inadmissible and potentially inflammatory statements made by Petitioner and included in the psychiatric reports were to be considered only for establishing the bases of the psychiatrists’ opinions and not for the truth of the matter asserted. Petitioner challenges his attorney’s introduction of the following statements of the psychiatrists: ‘He said that if he had his way he would call off this whole bunch of crap. He said he thinks this whole trip is a bunch of shit. He said he would just like to get it over with and take what is coming to him.’ ‘He does not think jail will do him any good, but he is not saying he wants to go to a hospital. He said jail is not hard on him but out there is hard on him.’ - ‘He said he does not understand what is going on out there.’ ‘He has been in institutions off and on with some regularity for more than half of his lifetime, since he was 13 years of age....’ ‘He sums it up by telling me that, one, he rejects authority and always will. Two, he does not go for the rehab bullshit. Three, he goes by the same code of ethics whether he is inside or outside of jail. Four, he is very prejudiced against Mexicans _’ ‘... he ... ’ could commit the same offense again toward others or himself, in fact he says this himself.’ Pet. 41:10-26. Petitioner also challenges the psychiatrists’ following statements: ‘He said he was in jail because he attacked a drunk and cut him up.’ ‘He said that as a juvenile he was arrested for, one, being a runaway; two, grand theft auto; three, burglary; four, assault with a deadly weapon.’ ‘He said as an adult he had been arrested for, one, assault with a deadly weapon; two, grand theft auto; three, armed robbery; four, parole violation; five, he was arrested about twelve times,' he thinks_’ ‘He said he would blow up and jump on two dudes ... ’ ‘Once before, I’d been drinking all day and I cut a junkie up. In the joint, I stayed mad the same way. I’m pretty anti-social, I guess.’ T think it was something that was building up in me. Prior to that, I had almost killed three people in an armed robbery. The night before, I had almost killed my old lady. I was just pretty crazy.’ ‘I’ve attacked other people, assaults, it’s been the same every time. I don’t think •I’m crazy, but something’s not right when you just shoot three people for the fuck of it because you’re pissed off. I’ve jumped on my stepdad. I’ve jumped on a lot of people with the intent to hurt them....’ ‘I’d blow it a lot. I’ve got a past history of a lot of violence, blowing up, bad temper.’ Pet. 50:25-51:26. The court finds that it is not reasonably probable that, but for counsel’s performance, the jury would have reached a different sanity phase verdict. As stated 'supra § 111(B)(1)(b), Petitioner has presented no evidence demonstrating that he could have carried the burden of proving insanity. Consequently, he suffered no prejudice in the sanity phase due to counsel’s alleged errors. Similarly, Petitioner suffered no prejudice at the penalty phase. Guilt phase evidence enabled the jury to construct a clear profile of Petitioner. This profile was simply echoed by the specific statements that Petitioner now challenges. In other words, the challenged statements, though perhaps factually new to some extent, were substantively familiar to the jury and therefore cumulative of the guilt phase evidence. The substantive reiteration of this evidence was not prejudicial because it is not reasonably probable that, but for counsel’s alleged errors, the jury would have reached a different penalty phase verdict. This argument therefore fails. Accordingly, the court denies relief as to all aspects of Claim B. C. Claim C Petitioner contends that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated because he was denied a competent psychiatrist and a competent psychiatric examination to aid in the evaluation, preparation, and presentation of his mental state defenses advanced at trial. Specifically, Petitioner asserts a due process violation because his court-appointed psychiatrists were allegedly incompetent as evidenced by their lack of familiarity with his drug and alcohol intoxication and their subsequent rendering of unhelpful opinions, and that their incompetence deprived him of the psychiatric assistance mandated by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the Supreme Court determined that: when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense. Id. at 83, 105 S.Ct. at 1096. The Court also recognized that psychiatry is not an exact science and that “psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, and on cure and treatment.” Id. at 81, 105 S.Ct. at 1095. Although the Ake Court indicated that a defendant is entitled to a “competent psychiatrist,” it did not set forth a standard for determining the level of competence mandated by the Constitution. The Ninth Circuit has recently provided guidance on this issue. In Harris v. Vasquez, 949 F.2d 1497 (9th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992), the petitioner argued “that he was denied access to a qualified psychiatrist who ‘conducts professionally competent examinations of the defendant and who on this basis provides professionally competent assistance.’” Id. at 1516 (quoting Appellant’s Brief at 15). The petitioner in Harris specifically argued that such psychiatric assistance was required by Ake’s due process holding. Id. The Ninth Circuit disagreed. In concluding that no Ake violation occurred, the Harris court adopted the reasoning of the Seventh Circuit in Silagy v. Peters, 905 F.2d 986 (7th Cir.1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991): Harris, 949 F.2d at 1517-18 (emphasis added by Ninth Circuit). we would be reluctant to open up this type of Ake claim to a battle of the experts in a “competence” review. Every aspect of a criminal case which involves the testimony of experts could conceivably be subject to such a review — a never ending process_ A conclusion to the contrary would require this court and other federal courts to engage in a form of “psychiatric medical malpractice” review as part-and-parcel of its collateral review of state court judgments. The ultimate result would be a never-ending battle of psychiatrists appointed as experts for the sole purpose of discrediting a prior psychiatrist’s diagnosis. We do not believe this was the intent of the Court in Ake when it held that indigent defendants who raise a defense of insanity are entitled to psychiatric assistance in the preparation of their defense. The Ninth Circuit also determined that “Ake does not guarantee access to a psychiatrist ‘who will reach only biased or favorable conclusions.’ ” Id. at 1516 (quoting Granviel v. Lynaugh, 881 F.2d 185, 192 (5th Cir.1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990)). In accordance with Harris, this court refuses to engage in a battle of psychiatric experts and “place federal courts in a psycho-legal quagmire resulting in the total abuse of the habeas process.” Id. at 1518. Petitioner entered a plea of not guilty by reason of insanity and the Merced County. Superior Court appointed two psychiatrists, Drs. Brannan and Lloyd, to examine' him. Thus, Petitioner had access to two psychiatrists prior to his trial. Both psychiatrists interviewed Petitioner and reviewed pertinent materials. RT Vol. VI 1328:18-20; 1329:1-17; RT Vol. VII 1521:20-21; 1530:11-13; 1530:18-22. Further, Petitioner provided both doctors with, inter alia, his history of drug use, head injuries, blackouts and prior psychiatric illnesses. See, e.g., RT Vol. VI 1356:8-1357:5; RT Vol. VII 1522:10-23; 1524:2-9; 1524:27-1525:8; 1525:12-22; 1531:1-28; 1534:8-1535:4. At no time has Petitioner attacked the credentials of either doctor. In fact, Petitioner utilized the services of both doctors; he offered Dr. Brannan’s testimony at the guilt phase and read the reports of both doctors into the record at the sanity phase. Thus, because Petitioner had access to, and.received, the assistance of two psychiatrists, no Ake due process violation occurred. Relief as to this claim is therefore denied. D. Claim D Petitioner alleges that the trial court violated his Fifth, Sixth, Eighth, and Fourteenth Amendments rights by admitting evidence of the theft of Terry Judd’s (Judd) gun and tools, and the robbery and subsequent arson of a camper, both of which were uncharged crimes. Additionally, Petitioner alleges that the trial court violated his constitutional rights by utilizing an impermissibly vague statute, Cal.'Penal Code § 190.3(b), at the penalty phase. Finally, Petitioner contends that the trial court violated his constitutional rights at the penalty phase by arbitrarily depriving him of a state criminal procedure. 1. Admission of Uncharged Crimes Evidence The Supreme Court has repeatedly stated that “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990). “A habeas petitioner who challenges a state court’s admission into evidence of prior acts of misconduct is not entitled to habeas corpus relief unless the state court’s admission of this evidence violated petitioner’s federal due process right to a fair trial under the Constitution.” Gordon v. Duran, 895 F.2d 610, 613 (9th Cir.1990). Consequently, to obtain federal habeas relief Petitioner must demonstrate that the state law error “rendered the trial so ‘arbitrary and fundamentally unfair’ that it violated federal due process.” Pennywell v. Rushen, 705 F.2d 355, 357 (9th Cir. 1983) (quoting Powell v. Spalding, 679 F.2d 163, 166 (9th Cir.1982)). a. The Judd Theft As noted, the first uncharged offense involved the theft of a gun and tools from Judd. The jury learned about this uncharged crime from the prosecutor’s opening and closing statements, RT Vol. Ill 454:10-455:5; 455:18-21; RT Vol. VII 1449:2-7; 23-27; 1450:4-8, and from the testimony of Judd, RT Vol. Ill 487:21-26; 489:9-21; 490:10-22; 491 22-24', K. Tyson, RT Vol. IV 736:12-26, Tyson, RT Vol. V 895:^10; 897:4-7; 899:5-7; 900:9-901:11; 902:7-12, and Petitioner. RT Vol. VI 1220:5-1221:28; 1224:13-17; 1224:25-1225:4; 1226:28-1227:6. Petitioner’s commission of this offense was not a hotly contested issue upon which the jury was required to deliberate. In fact, this issue was not disputed; Petitioner readily acknowledged his participation in this uncharged crime and admitted that his actions were wrong, RT Vol. VI 1220:5-12; 1221:9-15; 1224:13-17, 1224:24-28, thereby diminishing the effect of the admission of this evidence. However, assuming, arguendo, that the trial court improperly admitted evidence of this comparatively minor uncharged crime, Petitioner has failed to demonstrate that its introduction violated due process. The admission of evidence of alleged prior acts of misconduct does not necessarily deprive a defendant of due process. Gordon, 895 F.2d at 613. As the Ninth Circuit determined in Gordon, the following factors aid in determining whether a due process violation occurred due to the admission of such evidence: (1) the trial judge’s limiting instructions; (2) the relevance of the evidence; and (3) the jury’s ability to weigh the witnesses’ credibility. Id. At least two of these factors are present here. First, the trial court instructed the jury that evidence tending to show that Petitioner committed a crime other than that for which he was on trial could be considered, not for proving criminal disposition, but only for the limited purpose of establishing identity, motive, intent, knowledge, or modus oper-andi RT Vol. VII 1408:1-23. Second, the jury had the opportunity to weigh the credibility of all persons proffering evidence. Third, although the California Supreme Court found this evidence irrelevant, the court reiterates that Petitioner, as well as the state, presented testimony regarding this uncharged crime, thereby diminishing any controversy over its admission. Thus, application of the Gordon factors leads the court to conclude that admission of this evidence did not render Petitioner’s trial arbitrary or fundamentally unfair in violation of due process. b. The Camper Robbery/Arson The second uncharged offense involved the robbery and subsequent arson of the camper. The jury learned of this uncharged crime from, inter alia, Petitioner’s taped confession, RT Vol. V 1136:10, and his trial testimony. RT Vol. VI 1232:17-1235:5; 1235:23-1236:6. Once again, application of the Gordon factors demonstrates that admission of this evidence did not violate Petitioner’s right to due process. . First, the trial judge cautioned the jury that it was only to consider evidence of this uncharged crime for the limited purpose of:. determining if it tends to show the identity of the person who committed the crime, if any, of which the Defendant is in this trial is [sic] accused, and the existence of the intent which is a necessary element of the crime charged and a characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme alleged to have been used in the commission .of the offense in this case. RT Vol. IV 756:26-757:4. Moreover, the jury had the opportunity to weigh the credibility of the witnesses who testified concerning the uncharged crime. Finally, the circumstances and evidence of the robbery/arson were relevant to Petitioner’s identity and intent. Petitioner apparently burned the camper to destroy evidence connecting him to its robbery. He later used a check stolen from the camper to purchase M. Vargas’ car. Consistent with his desire to conceal his involvement in the robbery and arson of the camper, Petitioner, in travelling to Merced, intended to retrieve the check from M. Vargas. Petitioner subsequently committed murder to, inter alia, reclaim the check. These actions reflect Petitioner’s efforts to prevent authorities from discovering his participation in these crimes, and demonstrates the relevance of this evidence. Therefore, no due process violation resulted from the admission of this evidence. 2. Vagueness Petitioner contends that Cal.Penal Code § 190.3(b) is unconstitutionally vague because it does not require a jury instruction enumerating the discrete criminal offenses to be considered, the elements of said offenses, or the standard of proof which must be met before the jury may consider such offenses. Petitioner contends that, consequently, the jurors were free to weigh, in aggravation, any of Petitioner’s alleged conduct they viewed as criminal, and determine his sentence in a wholly arbitrary and capricious manner. Petitioner’s vagueness argument is unpersuasive. The Supreme Court has upheld the constitutionality of the California death penalty scheme, including § 190.3(b), pursuant to which Petitioner was sentenced. California v. Brown, 479 U.S. 538, 540 n. *, 107 S.Ct. 837, 838 n. *, 93 L.Ed.2d 934 (1987); Pulley v. Harris, 465 U.S. 37, 53-54, 104 S.Ct. 871, 880-881, 79 L.Ed.2d 29 (1984); California v. Ramos, 463 U.S. 992, 1005 n. 19, 103 S.Ct. 3446, 3455 n. 19, 77 L.Ed.2d 1171 (1983). The Harris Court specifically found that: [b]y requiring the jury to find at least one special circumstance beyond a reasonable doubt, the statute limits the death sentence to a small subclass of capital-eligible cases. The statutory list of relevant factors, applied to defendants within this subclass, “provide[s] jury guidance and lessen[s] the chance of arbitrary application of the death penalty guaran-teeting] that the jury’s discretion will be guided and its consideration deliberate.” Harris, 465 U.S. at 53, 104 S.Ct. at 881 (quoting Harris v. Pulley, 692 F.2d 1189, 1194-95 (9th Cir.1982) rev’d, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984)) (emphasis added). Accordingly, ha-beas relief for this aspect of Claim D is denied. 3. Deprivation of a State Criminal Procedure In a closely related allegation, Petitioner contends that the trial court violated his constitutional rights by failing to instruct the jury that, in determining his sentence, it could not properly consider the aforementioned uncharged crimes evidence as aggravating circumstances unless it first found these crimes were proven beyond a reasonable doubt. Petitioner’s argument, which relies on People v. Robertson, 33 Cal.3d 21, 53-55, 188 Cal.Rptr. 77, 655 P.2d 279 (1982), cert. denied, Robertson v. California, 493 U.S. 879, 110 S.Ct. 216, 107 L.Ed.2d 169 (1989), lacks merit. As noted above, alleged errors of state law do not provide a basis for federal habeas relief. When a state law error is asserted, the duty of a federal habeas court is to determine whether the petitioner received due process of law. Given the California Supreme Court’s holding that Petitioner was not deprived of a state court procedure, and because no other evidence suggests that Petitioner’s penalty phase was fundamentally unfair or his sentence unconstitutionally imposed, federal habeas relief is denied. Accordingly, Claim D is denied in its entirety. E. Claim E Petitioner alleges his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated because the trial court and county government “interfered” with defense counsel’s ability to prepare and present a defense, thereby denying Petitioner’s right to due process, and because defense counsel was burdened with a conflict of interest, thus denying Petitioner’s right to effective assistance of counsel. 1. Due Process As discussed supra § 111(B)(1)(a), Petitioner’s trial counsel was not aware of, and did not make a motion for funds pursuant to, Cal.Penal Code § 987.9. Nonetheless, Petitioner contends that the county government and trial court “impermissibly interfered with trial counsel’s ability to prepare and present a defense ... by appointing trial counsel ... and then denying him any funds for ancillary defense services.” Pet. 68:12-17. In support of this contention Petitioner submits that his trial counsel made two informal inquiries regarding defense funds, one to the trial judge and one to the court administrator. From the trial judge’s response to his inquiry, counsel received “the impression that no such funds were available.” Pet. 69:22. Similarly, the court administrator told counsel that “the entire yearly budget for contract attorneys had been expended and that no money was available for Petitioner’s case.” Pet. 69:25-70:1. The court recognizes that “the effective assistance of counsel guarantee of the Due Process Clause requires, when necessary, the allowance of investigative expenses or appointment of investigative assistance for indigent defendants in order to insure effective preparation of their defense by their attorneys.” Mason v. Arizona, 504 F.2d 1345, 1351 (9th Cir.1974), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975). See also Smith v. Enomoto, 615 F.2d 1251 (9th Cir.1980), cert. denied, 449 U.S. 866, 101 S.Ct. 199, 66 L.Ed.2d 84 (1980). “[HJowever ... such assistance is not automatically mandatory but rather depends upon the need as revealed by the facts and circumstances of each case.” Id. at 1352. Petitioner’s counsel revealed no need for defense assistance to the appropriate authority and, consequently, said authority had no occasion or opportunity to consider and grant or deny a request for funding. Thus, neither the county government nor the trial court violated Petitioner’s right to due process by “impermissibly interfer[ing]” with counsel’s ability to prepare and present a defense. Accordingly, this portion of Claim E fails. 2. Ineffective Assistance of Counsel Petitioner asserts that his trial counsel suffered a conflict of interest because “he was placed in the position whereby he had to personally pay for ancillary defense services, or forego the use of such services.” Pet. 68:19-21. Counsel’s decision to forego paying for such services allegedly “led to a series of acts, failures and omissions during the pretrial, trial and penalty phases which severely prejudiced Petitioner at trial and on appeal.” Pet. 70:11-13. The court disagrees. “In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest 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) (emphasis added). Cuyler applies to conflicts between a client and his attorney’s personal financial interest. Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir.1988), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988); United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981). If a defendant satisfies the Cuyler test, he has established a Sixth Amendment violation; no independent showing of prejudice is required. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. However, “until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719. Petitioner has failed to show that his defense counsel “actively represented conflicting interests.” Although the Sixth Amendment guarantee of effective assistance of counsel includes the collateral right to counsel’s undivided loyalty, Mannhalt, 847 F.2d at 579; Fitzpatrick v. McCormick, 869 F.2d 1247, 1251-52 (9th Cir.1989), cert. denied, 493 U.S. 872, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989), counsel’s duty of loyalty does not impose an ancillary obligation to personally finance his Ghent’s defense investigation and/or expert costs. In other words, no conflict of interest existed. Counsel’s failure to financially support Petitioner’s defense does not constitute a violation of his duty of loyalty or of Petitioner’s Sixth Amendment right to effective assistance of counsel. As a result, this argument fails. For the foregoing reasons, relief as to Claim E is denied. F. Claim F Petitioner alleges that the trial court vior lated his Fifth, Sixth, Eighth, .and Fourteenth Amendment rights by denying his motion to change venue and then failing to conduct “meaningful” voir dire, thereby denying his right to due process and a fair and impartial jury. Petitioner also alleges that his due process rights were violated by reason of an incomplete record. 1. Change of Venue Petitioner moved for a change of venue on the ground that he was prejudiced by pretrial publicity. In support of his motion, Petitioner supplied the trial court with copies of twenty-four print and broadcast stories published between October 10,1978, and December 14, 1978. The trial court denied the motion without prejudice. Petitioner renewed his motion on the third day of jury selection, and the court again denied the motion. Petitioner now argues that the court’s ruling was in error. The standards governing a change of venue derive from the Due Process Clause of the Fourteenth Amendment which safeguards a defendant’s Sixth Amendment right to .be tried by a fair and impartial jury. Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir.1988), cert. denied, 493 U.S. 1051, 110 S.Ct. 854, 107 L.Ed.2d 848 (1990). Due process requir