Full opinion text
ORDER STOHR, District Judge. I. Introduction This matter is before the Court on the petition of Missouri State prisoner Samuel Lee McDonald, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in the Circuit Court of the City of St. Louis on one count of capital murder, R.S.Mo. § 565.020, and a sentence of death, R.S.Mo. §§ 565.006-.008. After exhausting his available state law remedies, either by fairly presenting his claims to the Missouri courts or because he is now procedurally barred from doing so, petitioner initiated this action. In his petition, Mr. McDonald asserts eighteen grounds for relief with several subparts to many of those grounds. The petition was filed July 7, 1989 and assigned to the Honorable Clyde S. Cahill. Judge Cahill subsequently assumed senior status, and the matter was reassigned to the Honorable George F. Gunn. Judge Gunn recused himself, and the matter was transferred to this Court on October 18, 1993. II. Procedural Background Petitioner was arrested on May 17, 1981 and charged with the capital murder of Robert Jordan, an off-duty St. Louis County police officer. On February 24, 1982, following eight days of trial, a jury found petitioner guilty of murder, and based on its finding that petitioner committed the murder “for the purpose of receiving money or other thing of monetary value by taking [Jordan’s] wallet,” the jury recommended that petitioner be sentenced to death. See Resp.Exh. B, p. 210. Petitioner filed a motion for a new trial on March 19, 1982, asserting nine grounds for relief. Resp.Exh. B, pp. 153-201. The motion was denied on May 17, 1982, and petitioner sentenced to death. Resp.Exh. B, p. 91. Subsequently, a warrant of execution was issued. Resp.Exh. B, pp. 86-87. Petitioner appealed his conviction and sentence to the Supreme Court of Missouri. Resp.Exh. B, p. 81. On November 22, 1983, the Missouri Supreme Court affirmed petitioner’s conviction and sentence. State v. McDonald, 661 S.W.2d 497 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985). Petitioner then filed a pro se motion for post-conviction relief, pursuant to Missouri Supreme Court Rule 27.26, on May 2,1985. Resp.Exh. F, pp. 30-39. That motion was amended at least twice, on July 17, 1986 and October 23, 1986, with the assistance of appointed counsel. See Resp.Exh. F, pp. 23-29. The amended motion incorporates by reference petitioner’s original pro se motion and the subsequent amendments. In its amended form, petitioner’s 27.26 motion contains thirty-two claims of ineffective assistance of trial counsel. See Resp.Exh. F, pp. 24-39. See Amended 27.26 Motion, Resp. Exh. F, pp. 24-39. On October 3, 1986, the Circuit Court held an evidentiary hearing with regard to the grounds asserted in petitioner’s 27.26 motion (the “27.26 court”). See generally Resp.Exh. G. Ultimately, on January 20, 1987, the Circuit Court issued findings of fact and conclusions of law and denied petitioner’s amended 27.26 motion. See Resp.Exh. F, pp. 12-22. Petitioner appealed the denial of his 27.26 motion. Resp.Exh. F, p. II. The Missouri Court of Appeals affirmed the judgment of the Circuit Court denying petitioner relief on his 27.26 motion. McDonald v. State, 758 S.W.2d 101 (Mo.App.1988). Motions for rehearing and for transfer to the Missouri Supreme Court were denied August 31, 1988 and October 18, 1988 respectively. Petitioner then filed the instant petition. III. Facts The facts of this case are as follows. At approximately 11:00 p.m. on May 16, 1981, the victim, Robert Jordan, and his eleven year-old daughter, Rochelle Jordan, entered the Forest Package Liquor Store, which was located at 4401 Shreve Avenue, in the City of St. Louis. As an off-duty St. Louis County police officer, the victim was required to carry a concealed firearm at all times. Resp. Exh. A-l, p. 714. That evening, the victim carried his weapon, as well as a wallet containing his police badge. Resp.Exh. A-l, p. 715. The victim and his daughter entered the store, purchased some snacks, and proceeded to leave. At the same time, Stanley Hunter was on his way to the Forest Package Liquor Store when he passed a man, later identified as petitioner, standing to the side of the store. Resp.Exh. A-2, pp. 857-59, 863, 869-70. At approximately the same time, Archie White, who also later identified petitioner, was entering the Babysitter’s Lounge, located across the street from the liquor store. Resp.Exh. A-l, pp. 726, 728, and 734-35. As the victim left the store and walked to his car, he was accosted by petitioner. The victim’s daughter testified later that from the doorway of the liquor store she saw a man, who she could not identify, approach her father. Resp.Exh. A-2, pp. 1014-15. Then Archie White and Stanley Hunter both heard a shot. Resp.Exh. A-l & A-2, pp. 730-31, 861. They each turned to look, and they saw the victim on his knees with petitioner standing in front of him. Resp.Exh. A-l & A-2, pp. 730-31, 862-63. The victim handed petitioner his wallet. Resp.Exh. A-l & A-2, pp. 733, 863-64, 1015. Petitioner turned and started to walk away. Resp.Exh. A-l & A-2, pp. 733, 866-66. From her vantage point inside the door to the store, the victim’s daughter was able to see her father’s badge in the wallet as petitioner opened the wallet and turned away from the victim. Resp.Exh. A-2, p. 1016. Hunter did not see petitioner open the wallet, Resp.Exh. A-l, p. 879, but Mr. Hunter and Rochelle Jordan both testified that the petitioner turned back toward the victim and shot him through the chest, mortally wounding him. Resp.Exh. A-l & A-2, pp. 735-87, 1017. However, the victim was able to return fire, striking petitioner three times. Resp.Exh. A-l & A-2, pp. 737, 1017. Petitioner was able to stagger back to his vehicle, which was occupied by Ms. Jacqueline Blue, and the two fled the scene. Eventually, Ms. Blue drove petitioner to a Veterans Administration Hospital. Resp.Exh. A-2, p. 959. During the ride to the hospital, petitioner changed his shirt, discarding the blood-soaked shirt in a sewer. Resp.Exh. A-2, p. 957. Police officers responded to the Veterans Administration (“VA”) Hospital, where Ms. Blue advised officers of the location of her vehicle and gave them the keys. Resp.Exh. A-2, pp. 811 & 973. Offices went to the parking lot and examined the vehicle. Through the open rear window, officers observed the victim’s wallet with his badge protruding out. Resp.Exh. A-2, p. 814. An evidence team then examined the entire vehicle and recovered a jacket worn by petitioner during the commission of the crime and a gun. Resp.Exh. A-2, pp. 814. Ballistics tests failed to conclusively indicate whether the bullets whieh struck the victim were fired from the weapon recovered from the ear parked at the VA Hospital. However, ballistics did confirm that bullet fragments recovered from the liquor store parking lot were fired from the same weapon which police officers recovered from the trunk of the vehicle. With information obtained from Ms. Blue, officers also recovered from the sewer the blood-soaked shirt petitioner had been wearing after he was shot by the victim. Resp.Exh. A-l & A-2, pp. 771 & 975. Witnesses White and Hunter were both taken to the VA Hospital, where they identified petitioner as the man who shot Robert Jordan. Resp.Exh. A-l & A-2, pp. 742-43, 868-71. IV. Evidentiary Hearing By order dated December 1, 1992, the Honorable Clyde S. Cahill granted petitioner’s request for an evidentiary hearing on two specific issues: “(a) denial of petitioner’s motion for psychiatric examination, and (b) the statutory aggravating circumstance.” Petitioner then sought leave to present additional issues at the evidentiary hearing. However, subsequent to the order granting the hearing and before a ruling on petitioner’s request to submit additional issues for hearing, the case was transferred to Judge Gunn. After Judge Gunn recused himself, this Court received the file, conducted a careful review, and ordered the parties to file a brief memorandum setting forth their respective positions with respect to the necessity of an evidentiary hearing. In response to this Court’s March 10,1995 order, petitioner asserts that the principle issue requiring hearing involves the alleged “failure of trial counsel to adduce exculpatory evidence of petitioner’s psychiatric disorder.” Petitioner’s Memorandum, filed March 27, 1995, p. 2. In contrast, respondent asserts various reasons why each of petitioner’s grounds can be disposed of based on the record currently before the Court. An evidentiary hearing on habeas petition is mandatory only if a petitioner was denied a “full and fair hearing in a state court, either at the time of the trial or in a collateral proceeding.” Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). In Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), the Supreme Court clarified the appropriate standard to be applied by the district court in considering the necessity of an evidentiary hearing on a habeas petition. To be entitled to an evidentiary hearing, the Supreme Court held that the party seeking the hearing must show cause for his failure to develop the facts in the state-court proceedings and actual prejudice resulting from the failure. Keeney, 504 U.S. at 11-13, 112 S.Ct. at 1721. Following the United States Supreme Court’s decision in Keeney, issued after Judge Cahill’s order, the Eighth Circuit set forth the standards to apply in considering the necessity of an evi-dentiary hearing in the context of a habeas petition: Now, under Keeney, in order for a petitioner to be entitled to an evidentiary hearing in federal district court, petitioner must show both cause for his failure to adequately develop the facts material to his [claims] in the postconviction state court hearing and actual prejudice resulting therefrom; alternatively, petitioner must show that a fundamental miscarriage of justice would result from the denial of an evidentiary hearing in federal court. Id. [at 9-13, 112 S.Ct] at 1720-21. In order for us to find that a fundamental miscarriage of justice would result from denial of an evidentiary hearing in federal court, petitioner must demonstrate that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 [106 S.Ct. 2639, 2649, 91 L.Ed.2d 397] (1986). McCann v. Armontrout, 973 F.2d 655, 658 (8th Cir.1992). However, this Court need not hold an evidentiary hearing if petitioner fails to allege facts sufficient to justify habe-as relief. Townsend, 372 U.S. at 312, 83 S.Ct. at 756-57. The issue before the Court is whether petitioner is entitled to an evidentiary hearing on his claim that he was denied the effective assistance of counsel because his trial counsel failed to adequately investigate and assert petitioner’s alleged mental defect as part of the defense. Specifically, petitioner argues that “competent trial counsel would have presented a jury with evidence explaining the nature and consequence of post-traumatic stress disorder.” Further, petitioner suggests that there is “new evidence” concerning post-traumatic stress disorder, which might compel a jury to reach a different result. Applying the most recent standards set out by the Eighth Circuit, the Court finds that petitioner fails to demonstrate cause and prejudice resulting from his failure to adequately develop the facts relevant to this ground at the state court hearing on his 27.26 motion, and thus he is not entitled to an evidentiary hearing with regard to this claim. Keeney, 504 U.S. at 7-9, 112 S.Ct. at 1719. Petitioner fails to establish cause because he has not alleged that “some objective factor external to the defense” impeded his efforts, during the hearing on his 27.26 motion, to adduce evidence concerning the alleged ineffectiveness of his trial counsel’s representation. McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 1469-70, 113 L.Ed.2d 517 (1991) (applying cause and prejudice analysis in abuse of writ case), cited in Keeney, 504 U.S. at 11-13, 112 S.Ct. at 1721. Additionally, petitioner has failed to show actual prejudice that infected his entire trial with error of a constitutional magnitude. United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982). Presumably in an effort to demonstrate prejudice, petitioner argues that “new evidence which was not presented at trial probably would have caused reasonable jurors to find [petitioner] not guilty of the offense charged.” Petitioner’s Memorandum, filed March 27, 1995, p. 2. However, this contention is not relevant. The existence of “new evidence” has no bearing on why petitioner failed to present evidence to the 27.26 court concerning the adequacy of his trial counsel’s representation, much less that he was prejudiced as a consequence of that failure. Absent a showing of cause and prejudice, the Court will vacate that portion of Judge Ca-hill’s order granting an evidentiary hearing on this claim of ineffective assistance of counsel and instead deny petitioner’s request for a hearing. With regard to that portion of Judge Ca-hill’s order granting petitioner an evidentiary hearing on “the statutory aggravating circumstance,” petitioner does not address that issue in his response to the Court’s March 10 order. Thus, the Court presumes that petitioner has abandoned the need for a hearing on that ground. Further, Judge Cahill’s order does not indicate what evidence he contemplated hearing on that issue, and this Court does not find any basis for requiring additional evidence related to that issue. Therefore, the Court will also vacate that portion of Judge Cahill’s order granting petitioner an evidentiary hearing on “the aggravating circumstance,” and instead deny petitioner a hearing on this claim. For these reasons, the order of Judge Cahill granting petitioner’s request for an evidentiary hearing will be vacated and petitioner’s motion for such a hearing denied. The Court thus turns to a consideration of the various grounds asserted in petitioner’s first amended petition. V. Analysis A federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding may consider only those claims which the petitioner has presented to the state court in accordance with state procedural rules. Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989). This requirement implicates both the question of whether petitioner has exhausted all remedies available in the state court (i.e. the exhaustion requirement), and whether he has preserved his claims for federal habeas corpus review by complying with state procedural rules governing their presentation (i.e. the procedural default inquiry). Id. The question of whether a claim is procedurally barred is distinct from the inquiry concerning whether a claim has been exhausted. Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir.1992). However, a federal court may entertain a claim which has been procedurally defaulted in the state courts, if petitioner demonstrates adequate cause to excuse his state court default, as well as resulting prejudice from the default, or shows that a fundamental miscarriage of justice would occur if the federal court declined to consider his claims. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). Failure to satisfy the procedural default analysis mandates rejection of that particular ground. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). A. Ground I: Denial of Motions for Psychiatric Exam In his first ground for relief, petitioner claims that the trial court’s denial of his four motions for appointment of a psychiatrist violated his Fifth, Eighth and Fourteenth Amendment rights. Specifically petitioner claims that he was entitled to a mental examination to determine his mental state at the time of the crime, his mental fitness to stand trial, and circumstances relating to his mental health which might mitigate punishment. Amended Petition, ¶¶ 46 & 50. This Ground was asserted on direct appeal, see Resp.Exh. C, p. 7, and in petitioner’s 27.26 motion. See Resp.Exh. F, p. 34. On June 22, 1981, petitioner’s appointed counsel filed a “Motion for Appointment of Psychiatrist.” Resp.Exh. B, pp. 609-10. The motion was called for hearing on July 1, 1981 and denied at that time. Resp.Exh. B, pp. 608 & 598. There is no indication that petitioner’s trial counsel offered any evidence in support of the motion. On July 13, 1981, petitioner’s counsel filed a “Renewed Motion for the Appointment of a Psychiatrist.” Resp.Exh. B, pp. 591-93. The renewed motion was originally set for hearing on July 29, 1981 but was continued to August 12, 1981. Resp.Exh. B, pp. 590 & 589. On August 12, 1981, the second motion was denied without prejudice. Resp.Exh. B, p. 588. On January 25,1982, petitioner filed a third motion relating to a mental examination, which was denied on its face by the trial judge during the preliminary hearing on January 29, 1982. Resp.Exh. B, p. 468; Resp.Exh. A-l, pp. 14, 207. Finally, a fourth motion for appointment of a psychiatrist was made on February 16, 1982. Resp.Exh. B, pp. 365-68. The trial judge denied this fourth motion on its face just prior to the commencement of the trial on February 16, 1982. Resp.Exh. A-l, p. 248. In Ake v. Oklahoma, the United States Supreme Court held that denial of an indigent defendant’s request for a psychiatric evaluation violates due process “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.” Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985). The Eighth Circuit has indicated that in order to establish that an expert is necessary, a defendant must demonstrate a reasonable probability that the requested expert would aid in the defendant’s defense and that the denial of expert assistance would result in an unfair trial. United States v. Saint John, 851 F.2d 1096, 1098 (8th Cir.1988); Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir.1987) (en banc) (requiring more than mere possibility of assistance from expert), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988). This Court assumes without deciding that a defendant charged with a capital murder has a similar due process right to expert assistance if his mental state is to be a “significant factor” at either the guilt or sentencing phases of trial. Cf. Guinan v. Armontrout, 909 F.2d 1224, 1227 (8th Cir.1990). Applying the above standard to the facts of this case, the Court concludes that this claim provides no basis for habeas relief because petitioner failed to demonstrate to the trial court that his mental state was likely to be a significant factor at trial or at sentencing. Petitioner argues that this first motion, pertaining to his mental health at the time of the commission of the crime and at the time of trial, should have been “granted as a matter of right because it was accompanied by written notice sufficient to inform the prosecution of his intent to rely on the defense of mental disease or defect....” Amended Petition, ¶¶8 47 & 48. Presumably, petitioner is challenging the propriety of the trial court’s application of R.S.Mo. § 552.030, which governs the assertion of a mental health defense and the appointment of a psychiatrist. The trial court’s application of Missouri law fails to implicate any constitutional issue which might entitle petitioner to habeas relief, thus to the extent petitioner is asserting trial court error in support of this claim, the Court will reject that argument. Cf. Ricketts v. Adamson, 483 U.S. 1, 5-7 n. 3, 107 S.Ct. 2680, 2683-84 n. 3, 97 L.Ed.2d 1 (1989) (in federal habeas proceedings, the federal court is bound by state court interpretation of state law). Petitioner also challenges the denial of the three remaining motions for a psychiatric examination, as that issue pertains to his competency at the time of the commission of the crime and at the time of trial and as that issue pertains to sentencing mitigation. Amended Petition, IHIs 48 & 50-53. Petitioner claims that the denial of the last three motions for appointment of a psychiatrist violated his Eighth and Fourteenth Amendment rights. In his second motion, counsel stated that without a psychiatric examination of petitioner, she is “unable to determine whether or not the defense of mental disease or defect excluding responsibility should be raised.” Resp.Exh. B, p. 592. Counsel’s perceived need for such an examination was based solely on “her observations of defendant[/petitioner] both before the filing of this initial motion and now.” Resp.Exh. B, p. 591. Aside from counsel’s own perceptions, as set forth in the renewed motion, there was no indication that evidence or argument was offered in support of the second motion. The motion court denied the motion. Petitioner’s third motion was based on “information supplied by a relative by marriage of Samuel McDonald.” Resp.Exh. B, p. 468. Based on that information, counsel stated her “reasonable belief that at the time of the alleged offense Defendant may have been suffering from a mental disease or defect” and as a result could not have appreciated the wrongful nature of his conduct. Resp.Exh. B, p. 468. Although petitioner’s counsel offered argument in support of the motion, she did not represent that petitioner’s mental state would be a significant issue at trial. Consequently, that motion was ultimately denied. In the fourth motion, counsel asserted that three days earlier, she received petitioner’s medical records from the United States Army. Those medical records indicate that petitioner attempted suicide fourteen years prior to the commission of this crime. The Army’s records characterize the attempted suicide as “passive aggressive act secondary to the fact he was not relieved of KP duty.” See Resp.Exh. B, p. 736. Those records specifically state that petitioner was not suffering from any psychosis, neurosis, organic brain syndrome, or mental deficiency. Resp.Exh. B, p. 733. As a result, this motion was denied by the trial judge immediately prior to trial. Essentially petitioner’s counsel based all four motions for appointment of a psychiatrist on her belief that petitioner suffered from some mental disease or defect. She failed to offer any specific examples, nor did she provide any objective evidence that might demonstrate the existence of a mental disease or defect. At best, counsel offered petitioner’s army medical records, which affirmatively state that petitioner is not suffering from a mental illness. See Resp.Exh. B, p. 733. Based on this evidence, the Court is not persuaded that the denial of petitioner’s various motions for appointment of a psychiatrist violated his due process rights. There was simply no demonstration to the trial judge that petitioner’s mental state was to be a significant issue at trial or that an expert might aid in the defense. In an effort to bolster his claim, petitioner argues that the “evidence of alcohol and drug abuse, traumatic combat experiences, attempted suicide, and psychiatric evaluation in Vietnam raised issues under the statutory enumeration of mitigating circumstances, including extreme mental or emotional disturbance and substantially impaired capacity.” Amended Petition, ¶ 51. Neither the relevance nor the meaning of this statement is entirely clear. Presumably, petitioner is referring to R.S.Mo. § 565.012 (repealed October 1, 1984, replaced by R.S.Mo. § 565.032), which provided in relevant part that: .1 In all cases of capital murder for which the death penalty is authorized, the judge ... shall include in his instructions to the jury for it to consider: ‡ ‡ ‡ ‡ ‡ (2) Any of the statutory mitigating circumstances enumerated in subsection 3 which may be supported by the evidence; .3 Statutory mitigating circumstances shall include the following: ‡ ‡ ‡ ‡ ‡ ‡ (2) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; ‡ ‡ ‡ (6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; R.S.Mo. § 565.012. Petitioner contends that since Missouri law, under certain circumstances, might entitle a criminal defendant to a specific instruction relating to his mental health, the trial court was obligated to grant his request for a mental exam so that petitioner could evaluate whether to invoke this right. The Court finds this claim to be without merit. Petitioner failed to indicate or demonstrate that his mental health would be a “substantial issue at trial.” Rather at the time of his arraignment, petitioner entered a plea of not guilty and made no effort to assert a mental health defense. Resp.Exh. B, p. 15. Petitioner did file a “Motion to Permit Late Filing of Notice of Intent to Rely on Defense of Mental Disease or Defect Excluding Responsibility.” See Resp.Exh. B, p. 614. However, in the first motion for a psychiatric examination, petitioner stated that he desired an examination to determine whether it would be appropriate to assert a mental health defense. See Resp.Exh. B, p. 610 at ¶ 7(a). This falls short of demonstrating that his mental health would be a “substantial issue” for trial. Further, at trial, petitioner’s counsel specifically indicated that she was not relying on the defense of mental disease or defect excluding responsibility. “I am not now asking the court to permit me to rely on a [mental disease defense] because I cannot after obtaining such permission come forward with any evidence in support of it-” Resp.Exh. A-l, p. 274. Finally, as required by the express terms of § 565.012, the evidence failed to support an instruction on a mental-health based mitigating circumstance. Petitioner also cites Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), in support of this claim. Petitioner’s reliance is not persuasive, as that case addresses the propriety of instructing the jury on a defendant’s professed mental illness, once a psychiatrist has offered expert testimony. The issue presented here is whether petitioner was entitled under the Constitution to a psychiatric examination in the first instance — a question which the Court answers in the negative above. Finally, to the extent petitioner draws a distinction between the trial court’s obligation to permit petitioner a mental exam to determine his mental state at the time of the crime and at the time of trial, the result is the same. Due process requires the trial court to hold a competency hearing sua sponte whenever evidence raises a sufficient doubt about the accused’s mental competency to stand trial. Branscomb v. Norris, 47 F.3d 258, 261 (8th Cir.1995). There is no specific description of the quantum of proof necessary to establish “sufficient doubt,” the trial court should consider evidence of irrational behavior of the accused, his demeanor, and any prior medical opinion as to the accused’s competency. See, e.g, Griffin v. Lockhart, 935 F.2d 926, 930 (8th Cir.1991). Even doubts of the accused’s competency expressed by his counsel may be relevant, but those doubts alone are insufficient to establish the “sufficient doubt” contemplated in Branscomb. Id. The habeas petitioner bears the burden of proving that objective facts known to the trial court raised a sufficient doubt to require a competency hearing. Id. “The key inquiry is whether a reasonable judge, in the same situation as the trial court, should have experienced doubt about the accused’s competency to stand trial.” Branscomb, 47 F.3d at 262. For all the reasons set forth above, this Court concludes that petitioner has failed to carry his burden. There was simply insufficient objective evidence presented to the trial court to compel a reasonable judge to order a competency hearing, especially in light of the presumption that any defendant is competent to stand trial. Weisberg v. State of Minnesota, 29 F.3d 1271, 1276 (8th Cir.), cert. denied, — U.S. -, 115 S.Ct. 935, 130 L.Ed.2d 880 (1994). For these reasons, all relief on Ground I of petitioner’s first amended petition will be denied. B. Ground II: Denial of Motion for Judgment of Acquittal In Ground II, petitioner claims that “[t]he trial court’s denial of his motion for a judgment of acquittal at the close of all the evidence, based on petitioner’s assertion that the prosecutor failed to prove an essential element of capital murder, as defined by statute, deprived petitioner of his Fifth, Eighth and Fourteenth Amendment rights.” First Amended Petition, ¶ 54. The Court interprets this ground as challenging the sufficiency of the evidence of the mental element necessary for a conviction of capital murder. Specifically, petitioner alleges that the evidence adduced at trial, even viewed in a light most favorable to the prosecution, “failed to establish homicidal intent or premeditation.” Amended petition, ¶ 55. The United States Supreme Court set forth the standard for determining the sufficiency of evidence in a criminal case. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The constitutional standard for sufficiency of the evidence in a criminal case is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319, 99 S.Ct. at 2789. Based upon a review of the record before the Court, this ground is without merit. The events leading up to the murder and the cause and circumstances of the victim’s death — involving non-fatal shots fired at the victim, the theft of the victim’s wallet, a realization that the victim was a police officer, and ultimately the fatal gunshots to the victim’s chest — support a finding of deliberation and premeditation under Missouri law, defined as “whenever the defendant thinks about the act for any length of time, however short, before he acts.” State v. Bolder, 635 S.W.2d 673, 680 (Mo. banc 1982). Based on the evidence, it appears that a rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Scott v. Jones, 915 F.2d 1188, 1190 (8th Cir.1990); cert. denied 499 U.S. 978, 111 S.Ct. 1626, 113 L.Ed.2d 723 (1991). Finally, this Court notes that the Missouri Supreme Court determined that “the jury could reasonably find defendant intended to take the life of Officer Jordan and acted with the necessary premeditation and deliberation.” State v. McDonald, 661 S.W.2d at 500-01. To the extent that this determination represents a factual finding, that decision is entitled to deference from this Court. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Haymon v. Higgins, 846 F.2d 1145, 1146 (8th Cir.1988). Therefore, the Court will deny all relief based on Ground II of the petition. C. Ground III: Trial Court’s Conduct and Rulings Evidencing Its Bias Toward and Negative Regard For Petitioner In Ground III, petitioner alleges that the trial court communicated its prejudice against and hostility toward petitioner to the jury, and in so doing, violated petitioner’s Fifth, Eighth, and Fourteenth Amendment rights. Amended Petition, ¶ 57. This ground contains several claims: (a) the trial court improperly left the bench during trial to investigate an altercation outside the courtroom; (b) in doing so, the trial court admonished petitioner’s trial counsel not to block the court’s view of petitioner, thus allegedly revealing the court’s prejudice against petitioner; (c) the trial court improperly and incorrectly suggested that a defense witness might have violated a duty of confidentiality in testifying; (d) the trial court improperly permitted various relatives of the victim to introduce themselves to the jury; (e) the court permitted the victim’s wife to testify to irrelevant matters; and (f) the court failed to prevent the victim’s wife from displaying her grief to the jury. The only possible constitutional issue that these claims might assert is that petitioner was denied due process. In the first claim under Ground III, petitioner alleges that when the trial judge left the bench and specifically admonished petitioner’s trial counsel not to obstruct the court’s view of the petitioner, the court implied to the jury that it was distrustful of petitioner. Due process is denied when the alleged trial court error is “gross, conspicuously prejudicial or of such import that the trial was fatally infected.” Rhodes v. Foster, 682 F.2d 711, 714 (8th Cir.1982). The relevant question in this ease, therefore, is whether the trial judge’s conduct in leaving the bench and admonishing counsel not to obstruct the court’s view of the accused so infected the proceeding with unfairness as to render the jury’s guilty verdict and subsequent imposition of the death penalty a denial of due process. See, e.g., Sawyer v. Smith, 497 U.S. 227, 244, 110 S.Ct. 2822, 2832, 111 L.Ed.2d 193 (1990); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). With regard to leaving the bench during the voir dire, the petitioner failed to assert an objection. See Resp.Exh. A-l, p. 398-99. It was not until three days later, once the jury had been empaneled and sworn, and after the state had called ten witnesses, that petitioner’s trial counsel objected the judge’s conduct. Compare Resp. Exh. A-l, p. 398-99 with Resp.Exh. A-3, p. 913-14. Consequently, this Court is unwilling to afford petitioner relief now for something he did not seek relief for at the time. Gilmore, 861 F.2d at 1064. Further, after the jury returned its verdict as to guilt and punishment, the court asked them if his leaving the bench had in any way detracted from the proceedings. The jury replied in the negative. Resp.Exh. A-4, pp. 1430-31. Petitioner also asserts that the trial judge’s admonition to defense counsel not to obstruct the court’s view of the defendant indicated to the jury that the court was prejudiced against and hostile toward petitioner. In response to the objection of petitioner’s counsel, the trial judge stated: Let the record show the defense lawyer and her co-counsel have brought a big tripod up, they, they had with them some big cardboard, and I have indicated to them they couldn’t place anything that would obstruct the defendant’s view of the witnesses when they testify and the Court’s view of the defendant. Resp.Exh. A-3, pp. 1058-59. The trial judge developed the record as to the size of the obstruction and the necessity that petitioner be able to see the witness. Petitioner’s right to be able to view the witness is a constitutional right recognized by the United States Supreme Court in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Consequently, this Court is not persuaded that the trial court’s efforts to create an unobstructed view by petitioner or the court of the witness was inappropriate. Perhaps the trial judge could have made that intention clearer, but ultimately the judge’s intention was clearly stated for the record. There is simply no evidence of a “gross, conspicuously prejudicial [act or one] of such import that the trial was fatally infected,” and thus there is no due process deprivation here. Rhodes v. Foster, 682 F.2d at 714. Petitioner next alleges that the trial court improperly and incorrectly suggested that a defense witness, William Cheeks, breached a duty of confidentiality in his testimony. At the time of trial, Mr. Cheeks was a drug counselor for Archway Treatment Center. He was called to testify about the drug treatment afforded state’s witness Jacqueline Blue. After Mr. Cheeks testified about the Archway records, a conference was conducted outside the hearing of the jury, between the attorneys and the trial judge. During that sidebar conference, the trial judge advised Mr. Cheeks that “any unauthorized disclosure [of a patient’s medical records] is a federal offense.” Resp.Exh. A-3, p. 1087. Again, at most this claim would entitle petitioner to habeas relief if he can establish that this claim constitutes a deprivation of due process. This claim is without merit, as the challenged remarks of the judge occurred during a bench conference, outside the hearing of the jury. See Resp.Exh. A-3, pp. 1087-1094. Therefore, there is no way the judge’s remarks could influence the jury or reflect some bias on the part of the trial court. Absent the jury’s awareness of the judge’s remarks, assuming arguendo that they were inappropriate, there is no basis for finding that the trial was “fatally infected” by prejudice. All relief based on this claim of Ground III will be denied. Petitioner’s next claim under Ground III is that the trial court violated petitioner’s due process rights by permitting members of the victim’s family to introduce themselves to the jury. During voir dire, the trial judge asked members of the victim’s family to stand and introduce themselves to the jury so that the jury members would recognize them and avoid contact with them. See Resp.Exh. A-2, pp. 498-500. Later, after the jury had been sworn, the Court made a similar introduction of petitioner’s family members. See Resp.Exh. A-2, pp. 696-97. There is simply nothing in this record before the Court which demonstrate a due process deprivation. The trial court treated the victim’s family and the petitioner’s family in the same manner. Further, there is no showing that the trial court’s actions prejudiced the jury in any manner, and there is certainly nothing to show that the trial was “fatally infected.” Consequently, no relief will be afforded petitioner on this claim. In his fifth claim for relief under Ground III, petitioner alleges that the trial court permitted the victim’s widow to testify “regarding impertinent matters.” The admission of evidence lies within the purview of the trial court, applying the applicable state laws. See, e.g., Donnelly, 416 U.S. at 643, 94 S.Ct. at 1871; Griffin v. Delo, 33 F.3d 895, 904 (8th Cir.1994). Habeas relief will be accorded a petitioner only “when the alleged error infringed upon a specific federal constitutional right or is so grossly or conspicuously prejudicial that it fatally infected the trial and denied petitioner fundamental fairness.” Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir.1990), cert. denied, 499 U.S. 964, 111 S.Ct. 1594, 113 L.Ed.2d 657 (1991). The victim’s wife testified that her husband was a St. Louis County Police Officer. Resp.Exh. A-2, p. 714. She further testified that on the evening he was killed, her husband returned home from his second job as a security guard at approximately 9:30 p.m. Resp.Exh. A-2, p. 710. The victim then changed into civilian clothes and, consistent with St. Louis County Police policy, carried his service revolver concealed under his clothing. Resp.Exh. A-2, p. 714. The victim went to the Forest Package Liquor Store, accompanied by one of his four daughters. Mrs. Jordan then identified her husband’s wallet, keys, badge and service revolver. Resp.Exh. A-2, pp. 714-16. Finally, she related to the jury how she was called to the liquor store later that evening when her husband and daughter had not returned. Resp. Exh. A-2, p. 716. It is not clear why petitioner believes this testimony to be irrelevant. Nevertheless, any due process violations resulting from the admission of the testimony of the victim’s wife was not so prejudicial as to fatally infect the entire trial and make it unfair. Consequently, any error here does not rise to the level of a federal constitutional violation, and all relief based on this claim of Ground III will be denied. Finally, in Ground III, petitioner alleges that he was prejudiced because the trial court failed “to control or limit” Mrs. Jordan’s displays of grief. Amended Petition ¶, 61. The transcript fails to reflect any disruptive outbursts of grief. Petitioner fails to demonstrate that any emotion shown by the victim’s wife in anyway impacted the fairness of these proceedings. Consequently, any error here does not rise to the level of a federal constitutional violation, and all relief based on this claim of Ground III will also be denied. D. Ground IY: Trial Court’s Ruling On Petitioner’s Objection To The Testimony of Prosecution Witness Jacqueline Blue In Ground IV petitioner alleges that the trial court violated his constitutional rights by overruling his objections to the “self-serving, hearsay testimony” of Ms. Jacqueline Blue, the woman who accompanied petitioner on the evening of the crime. Amended Petition, ¶ 63. Specifically, petitioner alleges that Ms. Blue was permitted to testify that she had made a videotaped statement to police prior to trial and that the content of that statement was consistent with her in-court testimony. See Resp.Exh. A-3, pp. 976-78. Petitioner alleges that M. Blue’s in-court testimony effectively “bolster[ed] her testimony and enhance[d] her credibility.” Amended Petition, ¶ 64. This ground was asserted in petitioner’s motion for a new trial, see Resp.Exh. B, p. 178, and on direct appeal. See Resp.Exh. C, p. 14. Again, petitioner is arguing that his due process rights were impaired by alleged trial court error. In that context, petitioner must show that the alleged improprieties were “so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair.” Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir.1985). Petitioner’s burden in this context is to demonstrate that there is a “reasonable probability that the error complained of affected the outcome of the trial — i.e., that absent the alleged impropriety the verdict probably would have been different.” Hamilton v. Nix, 809 F.2d 463, 470 (8th Cir.1987) (citations omitted). Applying this narrow standard to the facts of this case, the Court is unpersuaded that any attempts by Ms. Blue to “bolster” her testimony with prior consistent statements “probably affected the outcome of the trial.” There was an abundance of evidence tying petitioner to the crime. There were at least two eye-witnesses, in addition to the victim’s daughter, see Resp.Exhs. A-2, pp. 731-40, 744, 747-48 and Resp.Exh. A-3, pp. 857-59, 861-66, & 870, petitioner’s bloody shirt, and the fact that petitioner was found in the hospital suffering from several gunshot wounds. Resp.Exh. A-4, pp. 1069-70. Absent any showing that this alleged error tainted the outcome of petitioner’s trial, this Court need not proceed further with this claim. All relief on Ground IV of petitioner’s amended petition will be denied. E. Ground V: Circuit Attorney’s Improper Argument During Guilt Phase of Trial In Ground V, petitioner argues that the improper argument’s of the prosecutor denied petitioner his due process rights. Amended Petition, ¶¶8 66-69. Specifically, petitioner challenges three remarks made by the prosecutor to the jury: (1) the prosecutor remarked that he removed the badge from his own wallet as soon as he heard of the victim’s death and would never carry it again because of his own fear; (2) the prosecutor also told the jury that the victim was still on his knees looking for their verdict; and (3) finally, the prosecutor told the jury that they would never be able to look other people in the eye if they compromised on their verdict. Amended Petition, ¶ 67. Petitioner alleges that these remarks constituted “extraneous, personal and emotional matter” which prejudiced the jury against petitioner. Initially, the Court rejects petitioner’s assertion that these remarks somehow rise to the level of an Eighth Amendment violation. Even if the Court concluded, pursuant Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), that petitioner’s argument falls properly under the Eighth Amendment, the Supreme Court has expressly concluded that such claims would be Teague barred since petitioner’s conviction became final prior to Caldwell. Sawyer v. Smith, 497 U.S. 227, 236, 110 S.Ct. 2822, 2828, 111 L.Ed.2d 193 (1989). With respect to petitioner’s due process arguments, the Missouri Supreme Court stated: We have carefully reviewed [petitioner’s] averments of improper argument ... [and] noted that (1) no objection was made to the complained of argument and (2) the prosecutor’s remarks were in retaliation to [petitioner’s argument]. We find no error, plain or otherwise, and deny the point. McDonald, 661 S.W.2d at 502. As respondent indicates, this “constitutes a short, plain statement of enforcement of the procedural bar.” Response, p. 41. Consequently, absent a showing of cause and prejudice, this Court will reject any claim based on these remarks. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977); Worthan v. Wyrick, 805 F.2d 303, 305 n. 4 (8th Cir.1986), cert. denied sub nom., Worthan v. Armontrout, 481 U.S. 1019, 107 S.Ct. 1901, 95 L.Ed.2d 507 (1987). Further, even absent such a bar, the Court finds this ground to be without merit. Cf. Green v. Groose, 959 F.2d 708, 709 (8th Cir.1992). In order to make out a cognizable claim of prosecutorial misconduct: [t]he petitioner must show that the alleged improprieties were “so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair.” Under this standard, a petitioner must show that there is a “reasonable probability that the error complained of affected the outcome of the trial — i.e., that absent the alleged impropriety, the verdict probably would have been different.” Blair v. Armontrout, 916 F.2d 1310, 1324 (8th Cir.1990) (citations omitted), quoting Newlon v. Armontrout, 885 F.2d 1328, 1336-37 (8th Cir.1989), cert. denied sub nom., Delo v. Newlon, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990). Having reviewed the comments petitioner claims are objectionable in the context of the entire trial record, this Court finds that the alleged improprieties did not rise to the level of depriving petitioner of a fair trial. See, e.g., Carlson v. State, 945 F.2d 1026, 1029 (8th Cir.1991). The majority of the prosecutor’s argument was based on evidence adduced at trial, and responsive to the arguments of petitioner’s trial counsel. See McDonald, 661 S.W.2d at 501; Resp. Exh. A-3, p. 1146 (indicating that petitioner first mentioned officials who carry badges); Resp.Exh. A-3, p. 1153 (reflecting petitioner’s argument concerning propriety of capital punishment in this case). In addition, the Court notes that the jury was instructed that the argument of counsel was not evidence. See, Jury Instructions No. 2 & No. 22, Resp. Exh. B, pp. 273, 293. Based on all these circumstances, the Court finds the prosecutor’s argument did not violate petitioner’s due process rights. Therefore, this ground is without merit and all relief on this ground will be denied. F. Ground VI: Trial Court’s Refusal to Dismiss The Aggravating Circumstance That The Offense Was Committed For The Purpose of Receiving Money In Ground VI, petitioner alleges that even viewing the evidence in a light most favorable to the prosecution, there is insufficient evidence to prove that the crime for which petitioner was convicted was committed for the purpose of receiving money, Amended Petition, ¶ 71, therefore, the trial court erred in denying his motion to dismiss the aggravating circumstance. Amended Petition, ¶ 70. Petitioner asserts that the statutory aggravating circumstance applies only to “crimes such as murder for hire or contract killings, in which the primary and pre-existing purpose of the killing itself is financial gain.” Amended Petition, ¶ 72. Respondent argues that petitioner never asserted a constitutional argument in support of this ground when he presented it on direct appeal. Rather petitioner made only a state law argument, attacking the Missouri court’s construction of the capital murder statute. See Resp.Exh. C, pp. 65-72. In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the United States Supreme Court held that a federal court should not reach the merits of a petitioner’s habeas corpus claim if he has failed adequately to present it to a state court. In order for a claim to have been adequately presented to a state court for procedural purposes in a habeas proceeding, the same facts and legal theories in support of the claim must be advanced in both state and federal court. Gilmore v. Armontrout, 861 F.2d 1061, 1065 n. 8 (8th Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989) (citing Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971)). Because petitioner’s various constitutional theories were not presented in the state courts, such a contention is now procedurally barred unless petitioner shows cause and prejudice. He has shown neither. Further, the record does not support a finding of petitioner’s probable innocence. Accordingly, this Court is barred from affording petitioner any relief on this ground. Additionally, even if this Court were to reach the merits of this ground, the Court finds it to be without merit. Petitioner offers no support for his strict reading of the Missouri statute governing this aggravating circumstance. In addition, it was not until June 1990 that the Supreme Court recognized sufficiency of the evidence as a cognizable ground for habeas relief, see Lewis v. Jeffers, 497 U.S. 764, 778-79, 110 S.Ct. 3092, 3101, 111 L.Ed.2d 606 (1990), well after petitioner’s conviction became final in 1985. Consequently, Teague bars retroactive application of this “new rule.” Finally, the Court notes, as did respondent, that the Missouri Supreme Court has carefully examined the sufficiency of the evidence, as part of its statutory review of petitioner’s death sentence. See R.S.Mo. § 565.014.3(2) (repealed effective October 1, 1984). In conducting this review, the Missouri Court rejected petitioner’s statutory argument. McDonald, 661 S.W.2d at 502-05. Pursuant to 28 U.S.C. § 2254, this Court is without authority to reexamine Missouri Law. Harkins v. Wyrick, 589 F.2d 387 (8th Cir.1979). G. Ground VII: Motion in Limine and Trial Objections To Improper Argument by Circuit Attorney Regarding Punishment In Ground VII, petitioner alleges that his due process rights were violated when the trial court erred by overruling motions in limine aimed at excluding from the prosecutor’s penalty-phase argument certain matters pertaining to punishment. Amended Petition, ¶ 75. Petitioner also alleges that the trial court erred in overruling objections made by petitioner to those portions of the prosecutor’s penalty-phase argument which petitioner sought to exclude through the motion in limine. Specifically, during his penalty-phase argument, the prosecutor displayed an envelope to the jury which allegedly contained additional photographs of the victim, which were not in evidence. Resp.Exh. A-4, p. 1385. The prosecutor stated that the victim was a “real nice man,” but the rules of evidence would not allow him to develop that evidence. Resp.Exh. A-4, p. 1387. The prosecutor told the jury that “if Mr. McDonald were sentenced to life imprisonment, that sentence might be reduced by legislative or executive action.” Resp.Exh. A-4, p. 1395-96. The prosecutor also told the jury that, in his personal opinion, the death penalty would deter homicide and was appropriate for capital murder. Resp.Exh. A-4, p. 1400. Finally, the prosecutor stated his belief that society had a right to defend itself and in fact was attempting to do so by providing for the death penalty for certain crimes. Resp.Exh. A-4, p. 1397. Closing arguments in capital cases must receive “a greater degree of scrutiny” than those in non-capital eases. Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) (plurality opinion). In his first claim under Ground VII, petitioner alleges that the prosecutor acted improperly in displaying an envelope containing photos which were not introduced into evidence. The prosecutor made a single reference to the pictures. Resp.Exh. A-4, p. 1385. Petitioner’s trial counsel objected to the display, but was overruled. Resp.Exh. A-4, p. 1385. The prosecutor made no effort to display the contents of the envelope to the jury, and there was no suggestion that the photos reflected matters that were not in evidence. See McDonald, 661 S.W.2d at 506; Resp.Exh. A-4, pp. 1385-86. There is simply no showing here that the trial court erred in overruling petitioner’s objection or that the petitioner was in any way prejudiced by the display of the envelope. Petitioner also challenges the prosecutor’s reference to the victim as a “real nice person.” The Missouri Supreme Court found that the statement was supported by the evidence, and there was no error in admitting the statement. McDonald, 661 S.W.2d at 506. The record adequately supports such a finding, see Resp.Exh. A-2, pp. 710-12, 714, 717, and there is no showing that the remark in anyway prejudiced petitioner, especially in light of the trial court’s admonition to disregard personal remarks of the prosecutor. Resp.Exh. A-4, p. 1392. In addition the jury was given two instructions which clearly state that argument of counsel is not evidence. See, Jury Instructions No. 2 & No. 22, Resp.Exh. B, pp. 273, 293. There is no indication here that the remark was improper or that petitioner was prejudiced thereby. Petitioner next claims that he was denied his constitutional rights when the trial court permitted the prosecutor to argue that a life sentence might be reduced by legislative or executive action. In Caldwell v. Mississippi, the Supreme Court held that a jury must not be misled regarding the role it plays in the sentencing decision. Caldwell, 472 U.S. at 336, 105 S.Ct. at 2643 (plurality opinion), at 341-42, 105 S.Ct. at 2646 (O’Con-nor J., concurring in part and concurring in judgment). The prosecutor in Caldwell, in remarks which were “quite focused, unambiguous, and strong,” misled the jury to believe that the responsibility for sentencing defendant lay elsewhere. Id. at 340, 105 S.Ct. at 2645. The trial judge not only failed to correct the prosecutor’s remarks, but in fact openly agreed with them. Id. at 339, 105 S.Ct. at 2645. The plurality concluded that the prosecutor’s remarks, along with the trial judge’s affirmation, impermissibly “minimize[d] the jury’s sense of responsibility for determining the appropriateness of death.” Id. at 341, 105 S.Ct. at 2646. Such a diminution, the plurality felt, precluded the jury from properly performing its responsibility to make an individualized determination of the appropriateness of the death penalty. Id. at 330-31, 105 S.Ct. at 2640-41. Justice O’Connor, in her opinion concurring in part and concurring in the judgment, identified more narrowly the infirmity in the prosecutor’s remarks: “In my view, the prosecutor’s remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury’s sense of responsibility.” Id. at 342, 105 S.Ct. at 2646. Relying on Justice O’Connor’s position, which is controlling, see Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977), the Supreme Court has concluded that Caldwell is “relevant only to certain types of comments — those that misleád the jury as to its role in the sentencing process in such a way that allows the jury to feel less responsible than it should for the sentencing decision.” Darden v. Wainwright, 477 U.S. 168, 184 n. 15, 106 S.Ct. 2464, 2473 n. 15, 91 L.Ed.2d 144 (1986). Thus, “[t]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law.” Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 1215, 103 L.Ed.2d 435 (1989). Petitioner argues that Caldwell controls this case. He contends that the prosecutor’s statements concerning clemency and the potential for legislative intervention im-permissibly undermined the sentencing jury’s sense of responsibility, in violation of the principle established in Caldwell. This Court disagrees. The infirmity identified in Caldwell is simply absent in this case. Here, the jury was not affirmatively mislead regarding its role in the sentencing process. Rather, the prosecutor merely stated, accurately, that legislative or executive action could result in an alteration of petitioner’s sentence. This statement would have been true regardless of the sentence imposed upon petitioner. Further, the jury instructions clearly indicated that the argument of counsel was not evidence. See Jury Instructions No. 2 & No. 22, Resp.Exh. B, pp. 273, 293. Finally, as indicated above, in response to petitioner’s objections at trial, the trial judge admonished the jury to “disregard any personal statements” made by the prosecutor. Resp.Exh. A-4, p. 1392. That this case is distinguishable from Caldwell only resolves part of petitioner’s challenge. Petitioner also asserts a violation of his Eighth Amendment rights. Presumably, petitioner is arguing that because statements concerning clemency and possible legislative intervention were permitted, the jury was permitted to discount the significance of its role, thus rendering petitioner’s sentencing proceeding so unreliable that it violated his Eighth Amendment rights. See, e.g., Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion). As indicated above, the challenged statements were likely irrelevant, but the fact that evidence deemed irrelevant under state law was admitted does not constitute a federal constitutional error. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 479-80, 116 L.Ed.2d 385 (1991). In determining that the prosecutor’s challenged remarks did not have the effect of discounting or diminishing the jury’s role, the Court is mindful of the fact that the due process clause does not allow the execution of a person “on the basis of information which he had no opportunity to deny or explain.” Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1207, 51 L.Ed.2d 393 (1977). However, the Court does not find, based on its review of the record, that the jury could reasonably have believed that petitioner would be released if he were not executed. There is no evidence to indicate that such a misunderstanding pervaded the jury’s deliberations, or that it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration. Rather, the jury was instructed that it could sentence petitioner to death only if it found any one of the “aggravating circumstances,” and the jury specifically made such a finding. The Court also finds no due process violation resulting from the prosecutor’s argument concerning the deterrent effect of the death penalty or society’s “right” to defend itself. The Supreme Court has approved the jury’s consideration of “future dangerousness” during the penalty phase of a capital trial, recognizing that a defendant’s future dangerousness bears on all sentencing determinations made in our criminal justice system. See California v. Ramos, 463 U.S. 992, 1003 n. 17, 103 S.Ct. 3446, 3454 n. 17, 77 L.Ed.2d 1171 (1983) (explaining that it is proper for a sentencing jury in a capital ease to consider “the defendant’s potential for reform and whether his probable future behavior counsels ag