Full opinion text
ORDER GRANTING PARTIAL SUMMARY JUDGMENT LEGGE, District Judge. DEATH PENALTY CASE I Petitioner James Richard Odie is a prisoner of the State of California, in state custody under sentence of death. He first sought habeas relief in this court in 1988. After briefing, argument and review of the state-court record and the applicable legal authorities, the court denied the seven claims in his original petition. See Odie v. Vasquez, 754 F.Supp. 749 (N.D.Cal.1990). Odie moved for reconsideration. Before this court ruled on that motion, the United States Supreme Court decided McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), which substantially limited the ability of habeas petitioners to raise new claims in a subsequent petition. In light of McCleskey, the court allowed Odie to amend his then-pending first petition, which had not become final. Odie then took several years to exhaust his new claims in state court, and then returned to this court with an amended petition raising 56 claims. This order is the first to rule on the merits of the claims in the amended petition. II The case is now before the court on a motion by respondent for summary judgment as to petitioner’s claims. The court held a hearing on April 28,1994, and orally granted summary judgment on claims M, N, R, T, Y, X, Y, Z, AA, CC, EE, FF, GG, LL, WW, XX, ZZ and AAA. Following that hearing, the parties agreed that certain additional issues could be submitted for decision on the record without oral argument. The court has now considered those issues and grants summary judgment on claims U, W, BB, DD, II, JJ, MM, NN, 00. QQ, RR, SS, TT, UU and BBB as well. This order states the reasons for this court’s decisions. III The state asserts, as a basis for summary judgment on numerous claims, that Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), precludes federal habeas relief. Specifically, respondent argues that Odie seeks relief that is barred by Teague because it would require this court to apply a new rule of criminal procedure. Odie responds that the state has not met its burden on summary judgment of showing that Teague bars relief on his claims as a matter of law. The United States Supreme Court held in Teague that new rules of criminal procedure generally may not be announced or applied on federal habeas corpus review. Teague, 489 U.S. at 307, 109 S.Ct. at 1073-74. The Court has developed a three-step analysis to determine whether a petitioner’s claim seeks to apply a new rule retroactively. See Caspari v. Bohlen, — U.S.-,-, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). First the date on which petitioner’s conviction and sentence became final must be determined. Second, the state of the law must be surveyed to determine whether, at the time the conviction became final, a state court “would have felt compelled by existing precedent to conclude that the rule [petitioner] seeks was required by the Constitution.” Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990). Third, if the petitioner seeks to apply a new rule, it must be determined whether the rule comes within either of two narrow exceptions to Teague. It is clear from a review of the cases that have addressed retroactivity that the Teague analysis is complex. See, e.g., Graham v. Collins, — U.S. -, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993); Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992); Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Because respondent seeks summary judgment, it carries the burden of proof. To prevail, it must “show that [it] is entitled to a judgment as a matter of law” on the basis of Teague. Fed.R.Civ.P. 56(c). To make the requisite showing, respondent must conduct the analysis set forth in Caspari and other Supreme Court cases following Teague. Respondent has determined when Odle’s judgment became final for purposes of Teague. See Memorandum of Points and Authorities in Support of Motion for Summary Judgment at 11. Beyond that, respondent raises Teague in one or two sentences after discussing the merits of many of Odle’s claims. See e.g., Memorandum of Points and Authorities in Support of Motion for Summary Judgment at 23, 52, 53, 56, 63, 68, 72-77, 93-95. Respondent has not outlined the state of the law relevant to Odle’s claims at the relevant time. It has not analyzed the claims it seeks to bar in light of the applicable law at that time. Respondent has not discussed whether Odle’s claims fall within either Teague exception. Because respondent has not satisfied this court of its analysis required by Caspari, the state has not met its burden on summary judgment. Its motion on Teague grounds is therefore DENIED without prejudice. IY Respondent argues that Odie has procedurally defaulted many of the claims presented in his amended petition. Odie maintains that the claims are not proeedurally defaulted and, alternatively, that the procedural rules relied upon by the state do not preclude federal habeas review. A state procedural rule cannot bar federal habeas review unless it constitutes an independent and adequate basis for the state court’s decision. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991). Whether a state rule satisfies the independent and adequate requirement is a question of federal law. Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988). The California Supreme Court order denying Odle’s third habeas petition relied both on the merits and on procedural rules. The order stated, “The court has considered each of the 46 claims raised in the third post-appeal petition in this matter (filed May 8, 1992), and denies the entire petition (i.e., claims “A” through “TT”) on the merits.” In re Odie on Habeas Corpus, No. S026511, 1992 Cal. LEXIS 5330 (California Supreme Court, October 28, 1992). In the next four paragraphs of the order, the court issued an alternative procedural ruling, beginning with the statement, “In addition, the court denies claim[s] ...” and concluding with citations to state case law. Under Coleman, this court may not review the merits of Odle’s habeas claims if the state court’s alternative procedural holdings set forth an adequate and independent basis for its decision. A procedural default is not “independent” if, for example, the state procedural bar depends upon an antecedent determination of federal law. Similarly, the procedural default is not “adequate” if the state courts themselves bypass the petitioner’s default and consider his claims on the merits, if the procedural rule appears to be discretionary, or, ordinarily, if the state fails to assert an interest in compliance with its procedural rules in the petitioner’s federal habeas proceedings. Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.1992). (1) Reliance on State Procedural Rules A federal habeas court may review a claim on the merits unless the state court made a “ ‘clear and express’ statement that it relied upon procedural grounds as an alternative holding.” Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir.1992) (en banc) (citing Thomas v. Lewis, 945 F.2d 1119, 1122-23 (9th Cir.1991)). When the order denying state habeas relief is ambiguous, a federal court will presume that the decision relied on federal law if it fairly appears to rest primarily on federal law or to be interwoven with federal law. Coleman, 501 U.S. at 735, 111 S.Ct. at 2557; Thomas, 945 F.2d at 1122. Ninth Circuit law. on the independence of alternative procedural holdings, like those at issue in Odie, is still evolving. The circuit has held that the California Supreme Court’s denial of a habeas petition without comment or citation is a decision on the merits of the federal claims. A federal court may thus review the merits of habeas claims that the California court denies without comment. Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir.1992) (citing Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir.1974) (en banc)). On the other hand, when the California Supreme Court denies a habeas petition with a citation to a state procedural rule, it denies the petition on an independent state ground. Hunter, 982 F.2d at 348; Harris at 1128. See also Thomas, 945 F.2d at 1123 (procedural ground is- independent when state court discussed Arizona procedural bar then stated, “Even if [Thomas’] claims were not waived, relief would be denied” and considered claim on merits). But cf. Karis v. Vasquez, 828 F.Supp. 1449, 1459 (E.D.Cal. 1993) (state grounds not independent when the order gave reasons, supported by state-law citations, for the default and addressed claims on the merits). Following Hunter and Harris, this court concludes that the California Supreme Court’s denial of Odle’s habeas petition rested on state procedural grounds. As the discussion below indicates, however, the state procedural rule relied upon does not preclude federal habeas review on the merits because the California Supreme Court has not applied the rule in a consistent and uniform manner. (2) Adequacy of State Procedural Rules Adequacy requires that the state procedural rule must be clearly applicable, firmly established and regularly followed and foreseeable. See, e.g., Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991); James v. Kentucky, 466 U.S. 341, 348-49, 104 S.Ct. 1830, 1835-36, 80 L.Ed.2d 346 (1984); Ulster County Court v. Allen, 442 U.S. 140, 150-51 nn. 8-9, 99 S.Ct. 2213, 2221 nn. 8-9, 60 L.Ed.2d 777 (1979). See also Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989) (procedural bar must be “consistently or regularly applied”); Karis, 828 F.Supp. at 1467 (rule must be applied in “vast majority” of cases). The California Supreme Court’s order in Odie included an alternative ruling denying thirty-one claims because they were not raised on direct appeal. Odie, No. S026511, 1192 Cal. LEXIS 5330 (citing In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953)). At the time of Odle’s direct appeal and habeas petition, the California Supreme Court treated Dixon as “merely a discretionary policy governing the exercise of the reviewing court’s jurisdiction to issue the writ.” See Kimble v. Vasquez, CV 90-4826 SVW (C.D.Cal. August 25, 1993) at 3; Karis, 828 F.Supp. at 1467 and cases cited therein; Murtishaw v. Vasquez, CV 91-508 OWW (E.D.Cal.1993) at 6-7 and cases cited therein; see also Siripongs v. Calderon, 35 F.3d 1308, 1318 (9th Cir.1994) (California procedural bars are discretionary and not consistently applied) cert. denied — U.S.-, 115 S.Ct. 1175, 130 L.Ed.2d 1127 (1995). This court agrees with the reasoning of three other district courts that the Dixon procedural rule has not been uniformly and regularly applied by the California Supreme Court. See Kimble; Karis, 828 F.Supp. 1449; and Murtishaw. The California Supreme Court recently held that it would construe and apply the Dixon rule more stringently and consistently in the future, virtually admitting that past precedent had been to the contrary. See In re Harris, 5 Cal.4th 813, 828-34, 21 Cal. Rptr.2d 373, 855 P.2d 391 (1993). The court’s plan to apply Dixon more strictly as of 1993 cannot pose an effective procedural bar to issues raised in Odle’s habeas petition (decided October 29, 1992) that were not raised on direct appeal (decided in 1988). See Ford, 498 U.S. at 424-25, 111 S.Ct. at 857-58 (procedural rule must be firmly established at the time in question to bar federal habeas review); Siripongs, 35 F.3d at 1318. Because the California Supreme Court did not apply the Dixon rule regularly and uniformly at the time of Odle’s direct appeal and state habeas proceedings, the rule is not adequate to bar federal habeas review of Odle’s claims. V This court now turns to the separate analysis of each of the claims resolved in this order. Claim R Odie claims that his representation was tainted by his co-counsel’s conflict of interest. Because co-counsel William Lowe was retained by the Public Defender’s Office, Odie argues, Lowe was infected by the office’s conflict of interest. The state responds that Lowe was never an employee of the office. For this reason, and because of the type of conflict that permitted the office to withdraw from the case, Lowe’s continued representation of Odie does not constitute a conflict of interest, according to the state. Lowe was recruited by the Contra Costa County Public Defender’s Office specifically to work on Odle’s ease. Lowe assisted Odle’s first counsel, Patrick Meistrell of the Public Defender’s Office. After Meistrell had been working on the case for about a year, he resigned from the Public Defender’s Office because he suffered a relapse of mental illness. 5/5/81 RT 24. The Public Defender’s Office then argued that it had a conflict of interest and asked the court for permission to withdraw from the case. 5/8/81 RT 31-32; IV CT 1143. The court granted the Public Defender’s request. 5/8/81 RT 32. New counsel was then appointed, but William Lowe continued to work on the case. 5/22/81 RT 43; V CT 1521. To show a Sixth Amendment violation based on conflict of interest, a petitioner must establish both an actual conflict of interest and an adverse effect on the lawyer’s performance. See Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). A petitioner must show that “some effect on counsel’s handling of particular aspects of the trial was ‘likely.’” United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir.1992) (citing Mannhalt v. Reed, 847 F.2d 576, 583 (9th Cir.1988)); see also Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir.1994) (attorney’s conduct “seem[ed] to have been influenced by the suggested conflict”). Odie has not satisfied this test. In declarations submitted to the court, both Lowe and Gagen state that they know of no actual conflict of interest that caused the Public Defender’s Office to withdraw from Odle’s case. Ex. 34 at 2 (Gagen declaration); Ex. 35 at 4 (Lowe declaration). The conflict was, by Gagen’s and Lowe’s accounts, between the office and Meistrell. Ex. 34 at 2; Ex. 35 at 3. Furthermore, Odie has not shown how trial counsel’s performance was adversely affected by Lowe’s earlier work on the ease with Meistrell as lead counsel. Based on the law and these undisputed facts, summary judgment is GRANTED in favor of respondent. Claim T Odie claims that he was denied his right to due process and to a fair trial when the trial court denied his motion to sever the Aguilar and Swartz murder counts. The state responds that Odie has not stated a eonstitutional violation. Respondent argues that Odie cannot show a due process violation because the evidence of the two murders is cross-admissible. A federal habeas court may grant relief on a claim that severance was improperly denied if the joinder rendered the trial fundamentally unfair in violation of constitutional guarantees of due process. Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir.1991). Whether evidence on one count would be admissible on the other count is relevant to a due process analysis of the denial of a motion to sever. Where evidence is cross-admissible, it is more difficult for a defendant to show that he was prejudiced by a joint trial. See Featherstone, 948 F.2d at 1503. It is undisputed that evidence of the Aguilar murder would have been admissible in a separate trial for the Swartz murder. This cross-admissibility undercuts Odle’s allegations of prejudice to his Swartz murder defense that might have arisen from joinder of the Aguilar offense. Furthermore, the trial court instructed the jury to decide each count separately. 23 RT 125. Odle’s counsel and the prosecutor both told the jury to consider the crimes separately and discussed the differences between the two murders. 23 RT 37, 55, 67. See Featherstone, 948 F.2d at 1503 (joinder did not violate due process even though evidence would not have been cross-admissible; the jury was instructed to consider the counts separately and the verdict showed that jury discriminated between the counts). Based on the trial court’s instructions to the jury and the cross-admissibility of the evidence, the court concludes on a summary judgment standard that the joint trial did not violate Odle’s right to due process. Claim. V Odie claims that the trial court’s failure to instruct the jury that it could not use bad-character evidence violated his right to due process. Specifically, he argues that the trial court did not instruct the jury that it could not use the Aguilar murder to show his predisposition to commit the Swartz murder. Because the jury was not so instructed and because the prosecutor used the Aguilar murder to show Odle’s predisposition to murder Swartz, Odie argues, the prosecutor’s burden of proof for the Swartz murder was impermissibly lightened. The state responds that the Constitution does not forbid the use of bad-character or predisposition evidence. It also argues that the jury was instructed to consider each offense separately. Furthermore, the state contends, the prosecutor’s argument was relevant to the special circumstance for the Swartz murder of killing to avoid lawful arrest. Considering the other instructions given and defense counsel’s argument, the court concludes that the trial court’s failure to instruct on proper uses of predisposition evidence did not violate Odle’s right to due process. The court instructed the jury that “[e]ach count charges a different offense. You must decide each count separately.” 23 RT 125. During argument, trial counsel repeatedly told the jury to consider the two crimes separately and distinguished them. See 23 RT 37, 55, 67. Nor did the prosecutor’s argument linking the two murders render Odle’s trial fundamentally unfair. Odie does not dispute that the Aguilar murder was relevant to Odle’s . motive and intent for the Swartz murder and to the special circumstance of murder to avoid lawful arrest. See Estelle v. McGuire, 502 U.S. 62, 70, 112 S.Ct. 475, 481, 116 L.Ed.2d 385 (1991) (due process not violated when trial court admitted evidence of victim’s prior injuries that was relevant to battered child syndrome). Cf McKinney v. Rees, 993 F.2d 1378 (9th Cir.1993) (defendant denied due process when trial court admitted evidence of defendant’s fondness for knives that was not relevant to the crime). The prosecutor thus had an evidentiary basis for tying the Aguilar murder to the Swartz murder. The court concludes that his argument did not violate due process. For these reasons and based on undisputed facts, the court concludes that due process did not require the trial court to instruct the jury that it could not consider the Aguilar murder as evidence of Odle’s predisposition to commit the Swartz murder. Nor did the prosecutor’s argument violate due process. Summary judgment in favor of respondent is therefore GRANTED. Claim V Odie challenges the trial court’s decision denying his motion to suppress evidence. The state argues that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), bars federal habeas review of this claim. Odie argues in response that Stone does not preclude review of his claim because he was denied a full and fair hearing on his Fourth Amendment claim. Fourth Amendment claims are not cognizable in federal habeas unless the petitioner was “denied an opportunity for a full and fair litigation of that claim at trial and on direct review.” Stone, 428 U.S. at 494, 96 S.Ct. at 3053. Since respondent has raised Stone as a defense, Odie has the burden of pleading that he was denied a full and fair opportunity to litigate the claim in state court. If Odie had this opportunity, this court need not examine the merits of his Fourth Amendment claim. See Mack v. Cupp, 564 F.2d 898, 901 (9th Cir.1977). Odie claims that his suppression hearing was not full and fair because his attorney at the time, Patrick Meistrell, was incompetent and ineffective. To prevail on such a claim, however, Odie must show both that counsel’s performance was substandard and that he was prejudiced. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986). Odle’s argument is not supported by the record. Trial counsel’s preparation and presentation of the suppression claim was clearly adequate. Counsel filed a pre-trial motion to suppress evidence under California Penal Code § 1538.5 on October 14, 1980. In support of the motion, he filed a twenty-seven-page memorandum of points and authorities challenging the search of the house, van and motel and the validity of three search warrants. CT 891-917. The prosecutor opposed the motion. CT 931-54. During the hearing, counsel made several proper objections, some of which the court sustained. Trial counsel actively examined and cross-examined the six witnesses. RT 78-134. Counsel filed a reply. CT 967-77. The court heard more witnesses and the parties’ arguments on October 22, 1980. RT 150-97. . The trial court denied the motion on January 16, 1981. RT 330. Counsel filed a petition for a writ of mandate, which was denied oh March 18,1981. CT 1112. The issue was not raised on Odle’s direct appeal. Odie alleges no specific flaws in the suppression hearing or in counsel’s performance. Because the court finds that trial counsel’s performance was adequate, summary judgment is warranted in favor of respondent. Claim W Odie argues that the jury instruction defining reasonable doubt, combined with the prosecutor’s argument about the definition, denied him due process. Specifically, he claims that the instruction confused the jury and unconstitutionally lightened the prosecutor’s burden of proof because it defined reasonable doubt in terms of “moral evidence” and “moral certainty.” The state responds that the instruction does not run afoul of the Constitution and was not reasonably likely to have misled the jury. The Supreme Court very recently upheld the constitutionality of California’s reasonable doubt instruction in the context of the case before it. See Victor v. Nebraska, — U.S. -, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). Although the Court criticized the use of the phrases “moral evidence” and “moral certainty,” it held that other instructions given in that case made it clear that the jury must render a verdict based on the evidence. Odle’s jury was given the same reasonable doubt instruction that the Court criticized but upheld in Victor. With the same language used in Victor, Odle’s trial court also instructed the jury that it must decide based on the evidence presented, rather than passion or prejudice. 23 RT 94, 95, 97; Victor, — U.S. at-, 114 S.Ct. at 1246-48. Presented here with a reasonable doubt instruction identical to the one upheld in Victor, this court concludes that the instruction did not deny Odie due process. Based on Victor and the record in this case, the court GRANTS summary judgment in favor of respondent. Claim X Odie argues that the court gave the jury an erroneous instruction on implied malice for the Aguilar murder. In particular, Odie maintains that the instruction did not require the jury to find that he was subjectively aware that his conduct was likely to result in death. The state responds that Odle’s challenge to the malice instruction does not establish a constitutional violation. Odle’s argument that the implied malice instruction in itself did not require a finding of subjective awareness may have some merit. But see People v. Dellinger, 49 Cal.3d 1212, 1217, 264 Cal.Rptr. 841, 783 P.2d 200 (1989) (language of instruction, although outdated, adequately instructs the jury that it must find whether defendant was subjectively aware that his conduct was life-threatening). Based on the facts of this case, however, the court concludes that if the jury applied the implied malice instruction, it also must have found the requisite intent. The jury applied the challenged instruction to reach its first-degree murder verdict only if it relied on a theory of lying-in-wait. For the jury to have found lying-in-wait, it must have found that Odie intended to cause “bodily harm involving a high degree of probability that it will result in death.” 23 RT 117. If the jury applied the implied-malice instruction, then, it necessarily found that Odie was at least subjectively aware that his conduct was likely to result in death. The court concludes that the challenged instruction did not violate Odle’s right to due process. Summary judgment in favor of respondent is GRANTED. Claim Y Odie claims that the prosecution’s theory of lying-in-wait murder was supported only by the uncorroborated testimony of his accomplice, Bryan Odie. As respondent points out, corroboration of accomplice testimony is not a federal constitutional requirement. Harrington v. Nix, 983 F.2d 872, 874 (8th Cir.1993); see also Lisenba v. California, 314 U.S. 219, 225-227, 62 S.Ct. 280, 284-285, 86 L.Ed. 166 (1941) (Fourteenth Amendment does not bar state from construing and applying laws on accomplice testimony); United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir.1993) (accomplice’s uncorroborated testimony is sufficient to sustain a conviction unless it is incredible or insubstantial on its face); United States v. Lopez, 803 F.2d 969, 973 (9th Cir.1986) (evidence was sufficient to support conviction even though accomplice’s testimony was the only evidence placing defendant at the scene of the robbery and implicating him in the extortion). Thus, Odle’s claim that his murder conviction relies solely on Bryan’s uncorroborated testimony does not establish a basis for habeas relief. Odie also argues that the jury instruction on accomplice corroboration denied him the right, guaranteed by state law, not to be convicted based solely on accomplice testimony. State-law violations are cognizable on federal habeas review when they arbitrarily deny a defendant a right to which he is entitled under state law. Arbitrary deprivations of state-law entitlements violate a defendant’s right to due process. See, e.g., Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980); Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986); Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir.1981). California’s corroboration requirement does not create a state-law entitlement to corroboration of every element of the crime. Rather, state law on accomplice testimony requires only that the corroboration connect the defendant to the crime and convince the jury that the accomplice is truthful. See, e.g., Cal.Penal Code § 1111; People v. Fauber, 2 Cal.4th 792, 834, 9 Cal.Rptr.2d 24, 831 P.2d 249 (1992); People v. Price, 1 Cal.4th 324, 443-44, 3 Cal.Rptr.2d 106, 821 P.2d 610 (1991). Odle’s jury was instructed that Bryan’s testimony must be corroborated by “independent evidence which tends to connect the defendant with the commission of the offense.” 23 RT 110. The court concludes that this language satisfied the state-law requirement. Furthermore, Bryan’s testimony was corroborated in accordance with California law. The testimony of several witnesses tended to connect Odie with the murder of Aguilar. See, e.g., 14 RT 117-46 (Cleona Bennett’s testimony that Odie told Bryan he had lost the knife and that Odie wrote two notes indicating that he committed the murder); 14 RT 33 (Officer Hodges’ identification of Odie as the driver of the van that had been parked at Aguilar’s house at the time of the murder); 13 RT 118-121 (LeaVa Wallace’s testimony that Odle’s appearance and dress were consistent with that of the person she saw around van parked in Aguilar’s driveway at the time of the murder). Because Odie has not shown a constitutional violation based on a due process right either to corroboration of accomplice testimony or to an instruction on corroboration, the state is entitled to judgment as a matter of law. The court GRANTS summary judgment in favor of respondent. Claim Z Odie claims that the uncorroborated testimony of Bryan Odie does not constitute sufficient evidence to support a conviction for lying-in-wait murder. The state argues that uncorroborated accomplice testimony is sufficient to support a conviction. The uncorroborated testimony of an accomplice is sufficient to support a conviction unless the testimony is incredible or insubstantial on its face. See, e.g., United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir.1993). Bryan Odle’s testimony was not incredible or insubstantial on its face. Bryan testified that he and Odie entered Aguilar’s dark, unlocked house. Odie stood near the hallway; when Aguilar came out of her locked bedroom to answer the phone, Odie hit her with a tire iron. 15 RT 159. They were at Aguilar’s house for a total of approximately twenty minutes. 15 RT 163. As discussed in Claim Y, Bryan’s testimony was corroborated in part by other witnesses. Odie would nonetheless be entitled to habeas relief if the evidence, including Bryan’s uncorroborated testimony, was insufficient to support his conviction. The evidence would not be sufficient if “it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-2792, 61 L.Ed.2d 560 (1979). For lying-in-wait murder, California law and the instructions given at trial required proof of: 1) waiting and concealment of sufficient duration to show the equivalent of premeditation or deliberation and 2) malice. 23 RT 115-17; CT 1610. This court concludes that the testimony of Bryan Odie and other witnesses, as described above, could support the jury’s finding of proof beyond a reasonable doubt of these elements. For these reasons, the state is entitled to judgment as a matter of law. Claim AA Odie claims that he was denied his right to a fair trial because he did not receive sufficient notice that the prosecution would present a lying-in-wait theory of first-degree murder. Respondent argues that Odle’s trial counsel had adequate actual notice. The critical issue in deciding whether notice was constitutionally adequate is whether the defendant had sufficient actual notice to present a defense, ensure adversarial testing and produce an acceptable record. Actual notice may be found in the record of pre-trial proceedings, opening statements, testimony or jury instructions. See, e.g., Morrison v. Estelle, 981 F.2d 425 (9th Cir. 1992) (testimony and jury instructions gave defendant sufficient notice of robbery and felony-murder); cf. Sheppard v. Rees, 909 F.2d 1234, 1235-37 (9th Cir.1989) (defendant did not have sufficient notice when felony murder was never mentioned during pre-trial proceedings, opening statements, testimony or initial instruction conference). The parties agreé that the information did not charge Odie with lying-in-wait murder. But Odie was alerted just before trial to the lying-in-wait theory." Arguing at a pre-trial hearing that the victim’s hearsay statements should be admissible, the prosecutor said: But the fact that she is afraid and doesn’t like Mr. Odie tends to support the evidence that will be coming in that Mr. Odie had to lie in wait and set up a ruse to lure her out of her bedroom where she had a locked door____ And it supports his state of mind that it was a lying-in-wait first degree murder. 13 RT 6 (emphasis supplied). The prosecutor’s opening statement on June 20, 1983, also gave trial counsel actual notice of the lying-in-wait theory. See 13 RT 13. The defense began its ease on July 5 (20 RT 6) and presented its closing argument a week later, on July 12, 1983. 23 RT 1. Based on uncontroverted facts, Odie knew at least two weeks before he started presenting his case that the prosecutor would seek a murder conviction based on lying in wait. Odle’s trial counsel discussing lying in wait during his closing argument. See 23 RT 26-28, 31. The Ninth Circuit has held that two days’ notice was sufficient to allow counsel to prepare closing argument based on a newly announced prosecution theory. See Morrison, 981 F.2d at 428. The uncontroverted facts show that Odie had actual notice of the lying-in-wait theory of first-degree murder from the start of the trial. Applicable Ninth Circuit law shows that the state is entitled to judgment as a matter of law. Claim BB Odie claims that the trial court had a duty to instruct the jury sua sponte on a lesser included offense. Specifically, he claims that the jury should have been instructed that it could have found three counts of joyriding, a misdemeanor, rather than the felony of “driving and taking a vehicle.” Because the instruction was not given, Odie argues, his convictions on those counts were unconstitutional. The state responds that Odle’s federal constitutional rights were not violated. The Ninth Circuit has held that a defendant is entitled to an instruction on lesser included offenses in certain circumstances. See, e.g., United States v. Gutierrez, 990 F.2d 472 (9th Cir.1993) (when instruction is supported by law and has a foundation in evidence) overruled on other grounds, United States v. Armstrong, 48 F.3d 1508 (9th Cir.1995); United States v. Sneezer, 983 F.2d 920 (9th Cir.1992) (when elements of lesser included offense are a .subset of offense and are supported by the facts). Failure to instruct on a lesser included offense does not violate the Constitution, however, unless a capital-case jury is faced with an “all-or-nothing choice” between acquittal and a murder conviction. See Schad v. Arizona, 501 U.S. 624, 647, 111 S.Ct. 2491, 2505, 115 L.Ed.2d 555 (1991); Beck v. Alabama, 447 U.S. 625, 637-38 and n. 14, 100 S.Ct. 2382, 2390 and n. 14, 65 L.Ed.2d 392 (1980). Odle’s trial court did not present the jury with such a choice by failing to instruct on joyriding as a lesser included offense. Odie also claims that the failure to instruct on the lesser included offense affected the penalty phase of his trial. Had the jury convicted him of three misdemeanors instead of three felonies, he argues, it might have given the incidents less weight as an aggravating factor. The court may review a sentence that was enhanced in reliance on an unconstitutional conviction. See Campbell v. Kincheloe, 829 F.2d 1453, 1461 (9th Cir.1987). Odie has not, however, established that his convictions for the three auto thefts were unconstitutional. Furthermore, the same jury that heard all the evidence and convicted Odie of the felony auto thefts also decided his penalty. The jury most likely based its penalty-phase determination about the aggravating weight of those incidents on the evidence it heard, not on- the felony label given to the incidents. For these reasons, the court concludes that the lack of an instruction on the lesser included offense did not affect the reliability of the jury’s penalty determination. Because Odie has not established a federal constitutional basis for his claim, the court GRANTS summary judgment in favor of respondent. Claim CC Odie argues that the trial court and the California Supreme Court denied him a fair trial by refusing to grant his motions and pre-trial writ seeking a change of venue. Respondent argues that this court must presume correct the state court findings that the denial did not prejudice Odie. It also contends that Odie has not offered evidence to undermine those findings. The Ninth Circuit recently set forth the appropriate procedure for a federal habeas court to evaluate a claim of prejudicial publicity. The court must make an independent review of the record to determine whether there was such a degree of prejudice against the petitioner that a fair trial was impossible____ [The] court must independently examine the news reports for volume, content, and timing to determine if they were prejudicial____ The prejudice requirement will be satisfied by a finding of: (1) presumed prejudice; or (2) actual prejudice. Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th Cir.1993) (citations omitted). A court may presume prejudice in those “extremely rare” situations when “the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime.” Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir. 1988); Jeffries, 5 F.3d at 1189. To determine whether prejudice should be presumed, the court considers the nature and timing of the publicity in relation to the jury selection. See Jeffries, 5 F.3d at 1189. The only evidence of media publicity before this court is the series of newspaper articles trial counsel Gagen filed as an appendix to his June 1981 motion for a change of venue. IV CT 1161-95. The trial court considered these articles and found that they, along with the other media coverage, were not “extensive or inflammatory.” IV CT 1232. The trial court’s factual findings about the publicity are entitled to a presumption of correctness. See 28 U.S.C. § 2254(d). Odie has not shown that the presumption does not apply. Presuming correct the trial court’s factual findings, the court concludes that there was no actual prejudice. In addition, Odie has not demonstrated actual prejudice. “Actual prejudice exists if the jurors demonstrated actual partiality or hostility that cannot be laid aside.” Harris, 885 F.2d at 1363; Jeffries, 5 F.3d at 1189. Jurors need not, however, be completely ignorant of the facts and issues in the case. During voir dire, the jurors were questioned individually about their exposure to media accounts of the case. See, e.g., 3B RT 18, 30 (juror Spears); 5A RT 72 (juror Hazleton); 5B RT 5-6 (juror MacDonald); 6 RT 129-30 (forewoman Billecci); 8 RT 90 (juror Gottlieb). Trial counsel Gagen stated, at the end of jury selection, that five out of 175 jurors were excused because of concerns about their exposure to publicity about the ease. 11 RT 62. Federal courts have found no actual prejudice when a much higher proportion of jurors was excused because of prejudicial publicity. See, e.g., Jeffries, 5 F.3d at 1189 (finding no prejudice where almost all the venire members had read about the trial and fourteen of 180 were excused for cause or potential prejudice; all the jurors swore they could decide impartially); Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2037-2038, 44 L.Ed.2d 589 (1975) (no actual prejudice found where twenty of seventy-eight potential jurors were excused for partiality). Also, like Jeffries, Odie does not point to any specific juror “partiality and hostility” revealed during voir dire. See Jeffries, 5 F.3d at 1189. After voir dire, the trial court found, based on the venire members’' responses to questions about publicity about the case, that the venire was not biased. 11 RT 64. Under Jeffries, a trial court’s factual finding about whether a jury is biased is entitled to a presumption of correctness. Jeffries, 5 F.3d at 1189. Odie has shown neither a factual nor a legal basis on which the court could find that this presumption is overcome. The trial court carefully considered Odle’s motion and questioned jurors individually about their exposure to media accounts of the ease. Odie does not point to any specific examples of venire-member prejudice. For these reasons, the state is entitled to judgment as a matter of law. Claim DD Odie argues that judicial misconduct in his case and in the case of his accomplice, Bryan Odie, denied him his right to a fair trial. The state denies that the judges’ comments constituted misconduct, and any misconduct that occurred, according to the state, was cured by the trial court’s instructions. Odie points to two judicial comments to establish his claim of misconduct. First, at the close of his case, his trial judge Arnason said: So it would appear, ladies and gentlemen, what we will be doing is after counsel — after we have the rebuttal witness on Monday, hopefully counsel will be in a position then to start arguing the case. After they finish their arguments you will be instructed, then the matter will be in your hands. We are getting down to the final lap as far as this phase of the trial is concerned. 21 RT 162 (emphasis added). Odie claims that this comment suggested to the jury that Odle’s guilt had already been decided and a penalty trial was inevitable. He argues that the comment undermined the presumption of innocence and the jury’s sense of responsibility for the verdict. The precise standard for reviewing claims of judicial bias or misconduct in a federal habeas proceeding in this circuit is unclear. See Jeffers v. Ricketts, 627 F.Supp. 1334, 1354 (D.Ariz.1986), rev’d on other grounds 832 F.2d 476 (9th Cir.1987), rev’d 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). See also Walberg v. Israel, 766 F.2d 1071, 1077-78 (7th Cir.1985) (standard is whether judge’s bias is likely to affect jury, but bias may violate due process even when the jury is unaware). The district court in Jeffers posited that a petitioner claiming judicial bias must show that the judge’s conduct 1) deprived him of a fair hearing; 2) is personal to the petitioner; and 3) arises from matters outside the litigation. Jeffers, 627 F.Supp. at 1354. By this standard, Odle’s claim of judicial misconduct fails. After the judge’s comment, the jury deliberated for approximately three days before reaching a verdict. 23 RT 147, 24 RT 10. The length of its deliberations suggests that the jury did not take Odle’s guilt to be a foregone conclusion. Also, the judge’s comment was not directed specifically at Odie, his conduct or his crime. Finally, the judge’s statement arose from the trial itself. The court concludes that the judge’s comments did not deny Odie a fair trial. The second judicial comment Odie cites to support his claim was a remark by Bryan Odle’s trial judge, Judge Fanin. During pre-trial proceedings in Bryan’s case, Judge Fanin said, I had the problem with Mr. [James] Odie. I think if he’s guilty he’s an animal, and he’s a bad person, if he’s guilty. And if he’s guilty, he’s also the man that had me vacate my house for a couple hours as a result of the shoot-out that was going on about four blocks away from where I live. Ex. 11 (excerpt from transcript in People v. Bryan Odie, Contra Costa Superior Court No. 24580). The judge made this comment in a different, albeit related, proceeding more than two years before Odle’s trial began. Odie has not shown that his jury knew about this comment or that it affected his trial. The court concludes that the judge’s comment does not constitute unconstitutional misconduct. Based on these undisputed facts and the standard set forth in Jeffers, the court concludes that Odle’s federal constitutional rights were not violated. The court GRANTS summary judgment in favor of respondent. Claim EE Odie makes two arguments that the jury was prejudiced against him because of security measures used for his municipal court appearances and during his trial in superior court. Odie claims that unnecessary shackling and restraints placed on him during municipal court appearances and while being moved to and from the courtroom prejudiced the jury against him. He also claims that the jury was prejudiced against him because two deputy officers guarded him in the courtroom during trial. Respondent argues that Odie has not shown that the shackling was prejudicial or unjustified. It also responds that Odie has not demonstrated prejudice from the presence of the deputies. Odle’s claim about the out-of-court shackles fails because he does not make specific allegations of prejudice as to particular jurors. Also, the record does not indicate that the petit jury was prejudiced against Odie because of the shackles and restraints. During voir dire, trial counsel asked venire members individually whether they had seen Odie in chains. He asked whether seeing Odie in restraints influenced their views about Odle’s dangerousness or culpability. One prospective juror stated that she saw Odie in shackles and assumed that he was dangerous. 3B RT 73-74. Another heard the chains and was disturbed that he was chained. 3B RT 128. A third prospective juror said that he saw the shackles but had no reaction. 3B RT 149. A fourth prospective juror heard the chains but formed no opinion about Odie or the shackling. 4A RT 19. None of these prospective jurors sat on the jury. In light of these facts, the court concludes that Odie was not prejudiced when the four venire members saw him in chains outside the courtroom. Odle’s second contention, that he was prejudiced by the security officers, is likewise without merit. The use of noticeable security personnel is not inherently prejudicial to a criminal defendant. See Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 1345-46 (1986). The jury may draw a variety of inferences from the presence of uniformed officers in the courtroom; the officers’ presence does not necessarily brand the defendant with an “unmistakable mark of guilt.” Id. at 571, 106 S.Ct. at 1347. The federal constitutional test is whether the security measures used were “so inherently prejudicial as to pose an unacceptable threat to the defendant’s right to a fair trial.” Id. at 572, 106 S.Ct. at 1347; Rhoden v. Rowland, 10 F.3d 1457, 1460 (9th Cir.1993). On the facts presented here, Odie has not shown that his right to a fair trial was compromised by the presence of the two guards. See Holbrook, 475 U.S. at 564, 106 S.Ct. at 1343 (12 uniformed officers for six defendants not prejudicial); King v. Rowland, 977 F.2d 1354, 1358 (9th Cir.1992) (three deputy sheriffs not unduly prejudicial). Under applicable Ninth Circuit law and based on the undisputed facts, the state is entitled to judgment as a matter of law on both parts of Claim EE. Claim FF Odie argues that jail officials interfered with his legal mail before trial and with his exercise privileges. Odie contends that his ability to communicate with counsel was affected. Odie also contends that his defense was hindered because counsel had to spend time challenging Odle’s conditions of confinement. The state does not dispute Odle’s allegations about jail conditions but denies that those conditions violated Odle’s federal constitutional rights. Odie has not presented authority that shows that restrictions' on his exercise privilege violated his constitutional rights. It is also not clear from the pleadings how interference with his mail rendered Odle’s conviction or sentence unconstitutional. Although his account is somewhat confusing, it appears that Odie told the court approximately a week before jury selection started that jail authorities had been opening his legal mail outside his presence for about a year and a half. 1 RT 74-75. He does not allege that this interference with his mail denied him access to counsel or to the courts. Because the record and pleadings do not show that Odle’s conditions of confinement rendered his conviction or sentence unconstitutional, the court GRANTS respondent’s motion for summary judgment on this claim. Claim GG Odie claims that his jury was summoned and selected in a racially discriminatory manner. Odie argues that the trial court erred when it denied his motion for a new venire that was based on the record in another Contra Costa County case. 1 RT 57-58. The state responds that Odie has not set forth the facts or the particular basis on which he seeks relief. To state a prima facie case of discriminatory selection of a jury venire, Odie must show that: 1) he is a member of a racial group capable of being singled out for differential treatment and 2) in his jurisdiction, members of his race have not been summoned for jury service over an extended period of time or were substantially underrepresented on the venire or that the venire selection process provided an opportunity for discrimination. Batson v. Kentucky, 476 U.S. 79, 94-95, 106 S.Ct. 1712, 1721-1722, 90 L.Ed.2d 69 (1986). Odie is Caucasian. 1 RT 58. Odle’s jury panel was entirely Caucasian. Thus the record does not support a claim of discrimination against Odle’s racial group. Nor does the record before the court show that the venire was discriminatorily selected. Odie has not made out a prima fade case of discrimination in summoning of the venire under Batson. For a prima facie showing of discrimination in selecting the petit jury, Odie must show that: 1) he is a member of a cognizable racial group and 2) any relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude venire members from the petit jury on account of their race. Id. at 96, 106 S.Ct. at 1722-1723. Odie has not established a basis for relief. He does not make specific allegations about the prosecutor’s use of peremptory challenges. He does not indicate facts to show that venire members were excluded because of their race. Because Odie has not made out a prima facie case of racial discrimination in the selection of either the venire or the petit jury, the state is entitled to judgment as a matter of law. Summary judgment in favor of the state is therefore GRANTED. Claim II Odie claims that his right to confrontation, cross-examination and counsel were violated by the admission at trial of hearsay statements that the victim, Aguilar, disliked him. He argues that the evidence was irrelevant, erroneously admitted and prejudicial. The state responds that the evidence was relevant and properly admitted under state law. It denies that admission of the evidence violated any of Odle’s federal constitutional rights. Odle’s claim fails because the record indicates that the victim’s hearsay statement did not render Odle’s trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 75, 112 S.Ct. 475, 483-484, 116 L.Ed.2d 385 (1991). There was contradictory testimony about whether Aguilar disliked Odie. Compare 13 RT 33 (Kathy Roby testimony that Aguilar got along with Odie and had never expressed any fear of him) ivith 14 RT 5 (Paula Hargadon testimony that Aguilar did not like Odie and would leave the room when he entered). Furthermore, the prosecutor did not mention Aguilar’s feelings towards Odie during his argument. Because the challenged hearsay statement was contradicted by other testimony and not emphasized by the prosecutor, the court concludes that its admission did not render Odle’s trial fundamentally unfair. Summary judgment is therefore GRANTED in favor of respondent. Claim JJ Odie claims that the trial court erred by admitting photographs of Aguilar’s autopsy. He argues that admission of the photographs denied him a fair trial. The state responds that admission of autopsy evidence does not constitute a due process violation. A petitioner may obtain habeas relief based on the trial court’s admission of allegedly prejudicial autopsy evidence if the use at trial of the evidence denied him due process. See Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir.1986); Redding v. Minnesota, 881 F.2d 575, 579 (8th Cir.1989). The court concludes that admission of the photographs did not violate due process. The photographs were relevant to the only issue the prosecutor had to prove: Odle’s state of mind at the time of the murder. See Kealohapauole 800 F.2d at 1466 (admission of videotape of victim’s autopsy was relevant to cause of death and did not deny defendant due process). According to the trial court’s comments and the parties’ arguments at a pre-trial hearing, the photographs were small and relatively noninflammatory, although they were in color. 12 RT 10, 11, 14. Furthermore, potential jurors were told that gruesome photographs might be introduced as evidence and asked whether such photographs would affect their ability to be fair. See, e.g., 9 RT 229-30 (juror Story), 10 RT 48 (juror McNutt). Based on Ninth Circuit precedent and the record in this ease, the court concludes that the autopsy photographs did not deny Odie a fair trial. The court GRANTS summary judgment in favor of respondent on Claim JJ. Claim LL 1. Arguments Odie claims that his due process rights were violated when the prosecutor introduced at the penalty phase evidence of an alleged burglary/robbery/assault (the Kaiser charges). Specifically, Odie argues that the prosecutor committed prejudicial misconduct by dismissing the Kaiser charges and then introducing the evidence at the penalty phase of his capital trial. He claims that the prosecutor sought dismissal to avoid the risk of an acquittal on the charges that would have precluded the jury from considering the evidence at the penalty phase. The state responds that because the evidence was admissible under state law, Odie has no basis for federal habeas relief. The state also denies that the prosecutor had improper reasons for dismissing the charges. It maintains that the prosecutor dismissed the charges to avoid further publicity that might have given Odie grounds to obtain a change of venue. 2. Facts The facts underlying Odle’s claim are not in dispute. The parties contest only the prosecutor’s motive for dismissing the Kaiser charges and then introducing them at the penalty phase. The original information for the two murder charges was filed on August 12, 1980. Ill CT 860. An information was filed the next month charging Odie with the Kaiser robbery, burglary, assault, false imprisonment and ear theft allegedly committed on March 15, 1980. See Ex. 10. In March 1981, two years before Odle’s murder trial, prosecutor Gary Yancey included the Kaiser charges in a notice of evidence that he intended to introduce at the penalty phase. The notice indicated that the evidence was relevant as “prior criminal activity of James Odie which involved the use or attempted use of force or violence.... ” See California Penal Code § 190.3(b). The notice referred to the Kaiser charges as “pending against the defendant.” IV CT 1084. A month after filing the notice, Yancey moved to continue the trial on the Kaiser charges until after Odle’s murder trial. 25 RT 21. Because Odie waived time on the murder charges but not on the Kaiser charges, the judge could not trail the Kaiser trial. 25 RT 13-14. The judge found no good cause for a continuance and denied Yancey’s motion. 25 RT 22. Yancey then moved to have the charges dismissed without prejudice, and the trial court granted the motion. 25 RT 22-23. At a hearing during the guilt phase of Odle’s murder trial, the parties argued about the admissibility of the Kaiser evidence in the penalty phase. Yancey testified that he had moved to dismiss the Kaiser charges, rather than try them before the murder charges, to ávoid additional publicity that might affect the murder trial. He denied that the charges were dismissed for lack of evidence. 25 RT 14, 26. Trial counsel Gagen responded that, by dismissing the Kaiser charges, Yancey had denied Odie his right to have them decided by a unanimous'jury that had not convicted him of the murders. 25 RT 15, 19. Gagen agreed that Yancey had said at the earlier proceeding that he would dismiss the Kaiser charges if they could not trail because of the pending change-of-venue motion. 25 RT 21. Gagen contended, however, that Yancey opposed Odle’s motion for a change of venue and had no genuine interest in minimizing publicity about the case. 25 RT 24-25. He argued that Yancey’s decision was part of his strategy to heap as much prejudice upon Odie as possible. 25 RT 22, 25. The trial court ruled that evidence of the Kaiser charges would be admissible in the penalty phase to support the aggravating factor of violent criminal activity. See California Penal Code § 190.3(b). In rendering its decision, the court cited three cases. It did not make any factual findings about the prosecutor’s conduct in dismissing the charges. 26 RT 1-2. 3. Analysis The government has broad discretion to initiate, conduct or delay criminal prosecutions. See, e.g., Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668-669, 54 L.Ed.2d 604 (1978); United States v. Moran, 759 F.2d 777, 783 (9th Cir.1985). Federal courts may review a prosecutor’s exercise of discretion, however, and grant relief if the decision was based on an unconstitutional motive. See, e.g., Wade v. United States, 504 U.S. 181, 184-86, 112 S.Ct. 1840, 1843-44, 118 L.Ed.2d 524 (1992); United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982); Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 668; Adamson v. Ricketts, 865 F.2d 1011, 1019 (9th Cir.1988) (en banc). But see United States v. Redondo-Lemos, 955 F.2d 1296, 1298-99 (9th Cir.1992) (separation of powers prevents federal court from granting relief for arbitrary and capricious charging decision). A prosecutor violates due process by making charging decisions in an arbitrary or capricious manner or with a vindictive motive. See, e.g., Goodwin, 457 U.S. at 372, 102 S.Ct. at 2488; Redondo-Lemos, 955 F.2d at 1298-99. A petitioner may establish actual prosecutorial vindictiveness by presenting objective evidence of the prosecutor’s improper motives. See Goodwin, 457 U.S. at 380 n. 12, 102 S.Ct. at 2492 n. 12. Odie has not presented such evidence. Yancey’s conduct, as reflected in the record, does not establish that he dismissed the Kaiser charges solely to penalize Odie or influence his conduct. See Goodwin, 457 U.S. at 384, 102 S.Ct. at 2494. Odie need not show actual vindictiveness to prevail on his claim, however. A presumption of vindictiveness arises when the circumstances surrounding a prosecutor’s decision show a “reasonable likelihood” of vindictive or unconstitutional motivation. See Goodwin, 457 U.S. at 373, 102 S.Ct. at 2488-89. To obtain relief or an evidentiary hearing based on the presumption, a petitioner must present something more than generalized allegations about the prosecutor’s improper motive. See Wade, 504 U.S. at 186, 112 S.Ct. at 1844; Redondo-Lemos, 955 F.2d at 1302-03; United States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th Cir.1982). A prosecutor may rebut the presumption, once raised, by “presenting evidence of independent reasons or intervening circumstances which demonstrate that [the] decision was motivated by a legitimate purpose.” Adamson, 865 F.2d at 1019. Odie argues that the prosecutor’s decision to dismiss the charges when Odie refused to let them trail the murder case is prosecutorial misconduct. He offers three facts to support his allegation: 1) the timing of the prosecutor’s motion to dismiss; 2) the prosecutor’s failure to try the Kaiser charges before the murder charges; and 3) the fact that the prosecutor would not have been able to introduce evidence of the charges at the penalty phase had Odie been tried and acquitted on the charges. The court is not persuaded that these facts are sufficient to invoke the presumption of vindictiveness. See Goodwin, 457 U.S. at 382 n. 15, 102 S.Ct. at 2493 n. 15 (only evidence supporting allegation of vindictiveness was that the prosecutor brought additional charges after the defendant refused to plead guilty); Gallegos-Curiel, 681 F.2d at 1171 (sequence of events is insufficient to invoke presumption; there must be likelihood of retaliation). Even if Odie has alleged sufficient facts to raise the presumption, however, the court concludes that the record rebuts the presumption of vindictiveness. Yancey gave notice that he would introduce evidence of the Kaiser charges at the penalty phase a month before he moved to have the charges dismissed. 25 RT 21; IV CT 1084. When he filed the notice, the charges were still pending. IV CT 1084. The timing of the notice and the motion for dismissal suggests that Yancey did not plan to have the charges dismissed just to ensure that he could present the evidence at the penalty phase of Odle’s