Full opinion text
MEMORANDUM OF DECISION AND ORDER STRAND, District Judge. This matter is before the Court on Respondents’ motion for summary judgment. The underlying action is a petition for writ of habeas corpus filed by Darriek Leonard Ger-laugh [hereinafter Petitioner] in which he contends that he is imprisoned and sentenced to death in violation of the Constitution of the United States. Petitioner’s amended petition filed on July 5, 1988, contains fifty claims for relief. Nine claims, 1-6, 8, 9 and 39, relate to the guilt phase of Petitioner’s trial. Seven claims allege error with respect to Petitioner’s direct appeal or state post-conviction relief proceedings. The remainder of Petitioner’s claims involve challenges to his death sentence. PROCEDURAL HISTORY On February 6, 1980, a Maricopa County grand jury indicted Petitioner for armed robbery, A.R.S. § 13-1904; kidnapping, AR.S. § 13-1304; and first degree murder, A.R.S. § 13-1105. Petitioner’s jury trial commenced on December 15, 1980. On December 19, 1980, after a four day trial, a jury convicted Petitioner on all counts presented in the indictment. On February 4, 1981, the trial court conducted a presentence hearing, and on February 11, 1981, the trial court sentenced Petitioner to death pursuant to A.R.S. § 13-703. On direct appeal, Petitioner raised seven separate challenges to his conviction. Upon review, the Arizona Supreme Court affirmed each of the convictions and the sentences imposed. State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800 (1982); State v. Gerlaugh, 135 Ariz. 89, 659 P.2d 642 (1983). On February 3, 1983, Petitioner commenced his first state post-conviction relief proceeding. (Resp’t Mot. Summ. J., Ex. 24 [Part 1] at 46 [hereinafter Ex_].) On the same day, the trial court stayed Petitioner’s execution. (Id. at 47.) On February 4,1983, the trial court appointed John Foreman to represent Petitioner in his post-conviction proceeding. (Id. at 51.) On March 21, 1983, Petitioner filed his amended petition for post-conviction relief. (Ex. 24 [Part 2] at 57.) Petitioner later supplemented and amended his petition on April 1, 1983, May 23, 1983, July 22, 1983, and November 30, 1983. (Ex. 24 [Parts 2-4].) On December 15, 1983, and March 7-8, 1984, the state court conducted an evidentia-ry hearing on the allegations raised in Petitioner’s petition for post-conviction relief. (Exs. 28-30.) On May 15, 1984, the trial court denied Petitioner all relief. (Ex. 23 at 83.) On July 27, 1984, the trial court denied Petitioner’s motion for rehearing. (Id. at 86.) On April 23,1985, the Arizona Supreme Court granted Petitioner’s petition for review and affirmed the trial court’s denial of relief. State v. Gerlaugh, 144 Ariz. 449, 698 P.2d 694 (1985) (en banc). On July 12,1985, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On the same day the Court stayed Petitioner’s execution. On July 23, 1985, the Court appointed present counsel. On September 26, 1985, Petitioner commenced a second Rule 32 proceeding and requested a stay of federal proceedings pending its resolution. On September 30, 1985, the Court granted Petitioner’s motion to stay proceedings. (File doe. no. 16.) As noted previously, Petitioner commenced his second state post-conviction relief proceeding on September 26, 1985. (Ex. 36 at 1.) The trial court conducted oral argument on January 13, 1986, and on January 14, 1986, denied all relief on the grounds of preclusion. (Ex. 35 at 32.) On February 12, 1986, the trial court denied Petitioner’s motion for rehearing. (Id. at 33.) On October 31, 1986, Petitioner filed an amended petition for writ of habeas corpus in this Court. On February 10, 1987, Respondents filed the first of seven motions for partial summary judgment. On August 28, 1987, Petitioner again requested a stay of proceedings for the purpose of exhausting state court remedies. (File doc. no. 77.) On September 22, 1987, the Court granted Petitioner’s motion and again stayed proceedings in this matter. (File doc. no. 93.) On-June 10, 1988, Respondents moved to vacate the stay of proceedings noting that the Arizona Supreme Court had denied review of Petitioner’s third petition for post-conviction relief on February 18, 1988. (File doc. no. 96.) In addition, Respondents requested the Court to order Petitioner to respond to the various motions for partial summary judgment. On June 27, 1988, the Court granted Respondents’ motion, vacated the stay of proceedings, and issued a briefing schedule. On July 5, 1988, Petitioner requested permission to again amend his petition to incorporate the two newly exhausted claims. On July 25, 1988, the Court granted Petitioner’s motion and on July 26, 1988, Petitioner filed an amended petition for writ of habeas corpus. (File doc. no. 101.) On September 29, 1988, this case was randomly reassigned to Federal District Court Judge Roger G. Strand. On January 20, 1989, the Court withdrew the reference to the magistrate and on the same day Respondents filed a motion to stay proceedings based upon the United States Court of Appeals for the Ninth Circuit’s decision in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988), cert. denied, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 795 (1990), which found the Arizona death penalty statute unconstitutional. On February 9, 1989, the Court granted Respondents’ motion and stayed further proceedings. On November 15,1990, the Court, sua sponte, vacated the stay of proceedings based upon the United States Supreme Court’s decision in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), and scheduled a status conference for December 10,1990. (File doc. no. 132.) After the parties requested and received opportunities to file supplements to then-original pleadings along with various responses and replies, the Court scheduled a status conference for July 23, 1992. At the status conference the Court informed the parties that the file had simply become unwieldy in light of the more than fifty pleadings now covering the seven motions for partial summary judgment. Upon further discussion with the parties it was agreed that the most expeditious and practical fashion in which to proceed would be to have Respondents file one consolidated motion for summary judgment addressing all of Petitioner’s allegations of error. On October 2, 1992, Respondents filed their consolidated motion for summary judgment. (File doc. no. 166.) On January 15, 1993, Petitioner filed his response to Respondents’ motion and on April 9, 1993, Respondents filed their reply. FACTUAL BACKGROUND On January 24, 1980, Petitioner and two other individuals, Joseph Encinas and Matthew Leisure, decided to visit a friend who lived in Chandler. After drinking and socializing for a period of time, the three men began hitchhiking towards Phoenix. Although subject to some dispute, it appears that they all determined that they would rob whomever was unfortunate enough to offer them a ride. At approximately 11:30 p.m., Scott Schwartz, the victim, offered the three men a ride. A short time after entering the vehicle Petitioner brandished a gun and directed Schwartz to a remote area in Mesa. Once they arrived at the scene of the crime, all four men exited the vehicle. Petitioner then pointed the gun at Schwartz and demanded money. Unexpectedly, Schwartz disarmed Petitioner and attempted to shoot one of the three men. After the gun did not fire, the victim was informed that it was not loaded and the three men restrained and severely beat the victim. Petitioner then determined that to ensure their anonymity Schwartz had to be killed. Petitioner told Encinas and Leisure to place the victim in the road so that he could run him over with the ear. Petitioner then ran over the victim several times. Upon discovering that the victim was not yet dead, one or more of the three men proceeded to stab the victim to death with a screwdriver found in the victim’s car. After the victim was dead, the three men attempted to hide the body in an adjacent alfalfa field. The three drove off in the victim’s car, which became disabled a short time later. The three men once again began to hitchhike and were picked up by Harry Roche. Although Mr. Roche could not identify the individuals at trial, he stated that some men answering their general description unsuccessfully attempted to rob him after he picked them up hitchhiking. Several days later, Encinas relayed what had transpired to a friend who provided general information to the police. Ail three men were subsequently arrested and confessed. Petitioner was the only defendant sentenced to death. JURISDICTION AND VENUE Petitioner is in custody pursuant to the judgment of a state court and seeks relief on the ground that his imprisonment and sentence are allegedly imposed in violation of his constitutional rights. This Court, therefore, has jurisdiction over his petition pursuant to 28 U.S.C. § 2254. Petitioner was convicted and sentenced by the Maricopa County Superior Court in the State of Arizona. Venue is, therefore, appropriate in the United States District Court for the District of Arizona pursuant to 28 U.S.C. § 2241(d). LEGAL STANDARDS A motion for summary judgment is authorized in civil proceedings pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure are, to some extent, applicable to federal habeas corpus actions filed pursuant to 28 U.S.C. § 2254. See Rule 11 of the Rules Governing Section 2254 Cases, 28 U.S.C. foil. § 2254. Respondents’ motion is therefore governed, to some extent, by the standard applied to summary judgment motions. Pursuant to Rule 56, summary judgment may be granted if the movant shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The fact that the underlying action is a petition for writ of habeas corpus is not, however, without significance. While habeas proceedings are characterized as civil in nature, they are in fact unique, being civil challenges to previously resolved criminal proceedings. As such, application of the traditional standard of review is somewhat altered. For example, summary judgment may be appropriate even if there is what would normally be classified as a material dispute if, for example, a presumption of correctness is found to apply, or if procedural barriers prevent further review or development of a claim. Thus, although a motion for summary judgment may be an appropriate pleading, it is not subject to the same standard of review as would be applied in a typical civil case. The doctrines of exhaustion, procedural default, and related federal habeas jurisprudence may not be ignored and may resolve or prevent consideration of an issue even if the underlying facts remain in dispute. DISCUSSION OF GUILT PHASE CLAIMS Claim 1: Whether Petitioner’s arrest violated his Fourth or Fifth Amendment rights. In Petitioner’s first claim he contends that the police arrested him in his home without a warrant and no exigent circumstances existed to justify such an intrusion in violation of his Fourth Amendment rights. Therefore, Petitioner asserts that the custodial statement he subsequently provided law enforcement officials was obtained in violation of his Fifth Amendment rights and should have been suppressed. A.) Fourth Amendment: Petitioner’s present claim arises under the exclusionary provisions of the Fourth Amendment. As such, Respondents’ request summary judgment contending that the claim is barred from further review on federal habeas pursuant to the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976). In his response, Petitioner discounts the effect of Stone and proceeds to argue the merits of his claim. After review, the Court agrees with Respondents that Stone applies and further review or relief on this claim is foreclosed. In Stone, the United States Supreme Court held “that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone, 428 U.S. at 494, 96 S.Ct. at 3052 (footnotes omitted); see also Myers v. Rhay, 577 F.2d 504 (9th Cir.1978), cert. denied, 439 U.S. 968, 99 S.Ct. 459, 58 L.Ed.2d 427 (1978) (applying Stone to Fourth Amendment claim on federal habeas review). Further, Stone requires nothing more than the opportunity for a fair hearing. Caldwell v. Cupp, 781 F.2d 714, 715 (9th Cir.1986). The only remaining issue, therefore, is whether Petitioner was provided a full and fair opportunity to litigate his claim in the state courts. See Woolery v. Arave, 8 F.3d 1325 (9th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1623, 128 L.Ed.2d 348 (1994) (Unless affirmative showing is made that state denied full and fair opportunity to litigate Fourth Amendment claim, Stone requires dismissal of claim even if the State fails to raise it as a defense.). 1) STATE PROCEEDINGS: Petitioner challenged the legality of his arrest prior to trial, on direct appeal and in his first post-conviction relief proceeding. Prior to trial Petitioner requested a suppression hearing alleging that his arrest was unlawful. (Ex. 2 at 13.) In his motion to suppress Petitioner asserted that he was arrested in his home without a warrant and that, because no exigent circumstances were present nor were the police invited to enter, his arrest was illegal. Thus, Petitioner asserted that all evidence and statements obtained incident to his arrest had to be suppressed. (Id.). On June 27, 1980, the trial court commenced a three-day suppression hearing to determine the legality of Petitioner’s arrest. (Exs. 4 & 5.) The trial court heard testimony from various arresting officers, the officers conducting the interrogation and Petitioner’s sister who was present at the time of Petitioner’s arrest. In total, the testimony and arguments of counsel relating to Petitioner comprised approximately 150 pages of transcript. After considering the relevant testimony and arguments of counsel, the trial court denied Petitioner’s motion to suppress finding that the officers were admitted voluntarily into Petitioner’s house and that resolution of other issues was unnecessary. (Ex. 1 at 22.) On direct appeal, Petitioner again challenged the propriety of his arrest and the admission of his post-arrest statements. Petitioner challenged his arrest on Fourth Amendment grounds as his first claim in his opening brief to the Arizona Supreme Court. (Ex. 18 at 5-19.) In his brief Petitioner thoroughly argued the facts and law he now presents in his federal habeas petition, including the facts gleaned from testimony provided in the suppression hearing. Upon review the Arizona Supreme Court found that Petitioner’s arrest was legal under the line of authority presently relied upon by Petitioner and, therefore, his confession was properly admitted. State v. Gerlaugh, 134 Ariz. 164, 167, 654 P.2d 800, 803 (1982). Petitioner also challenged his arrest in his first post-conviction relief proceeding. Petitioner raised this claim as issue 1.1. (Ex. 24 [part 2] at 57.) The arguments presented were virtually verbatim to those presented in his federal habeas petition filed on July 8, 1988. Upon review the trial court ordered an evidentiary hearing. (Ex. 23 at 69.) At the evidentiary hearing, Petitioner presented the testimony of his father, William Gerlaugh, as well as that of his former trial counsel and his sister, Beverly Gerlaugh. Petitioner also attempted to introduce the results of polygraph tests administered to both his father and sister. These test results were not admitted. Petitioner questioned his father and established what his testimony would have been had he been called to testify at the pre-trial suppression hearing. Petitioner also questioned former trial counsel, William Feldhacker, as to why William Ger-laugh was not called as a witness. (Ex. 28 at 33-76 and 96-118; Ex. 30 at 47-52.) In reviewing this claim on-the-merits, the trial court considered the testimony and admitted exhibits as well as the record in the case. Upon review, the court concluded that, had the testimony of William Gerlaugh been presented at the pre-trial suppression hearing, the result would have been no different. Moreover, the trial court found that Petitioner’s trial attorney did not render ineffective assistance and his decision not to call Petitioner’s father as a witness was an informed decision. (Ex. 23 at 83a.) 2) ANALYSIS: In Terrovona v. Kincheloe, 912 F.2d 1176 (9th Cir.1990), cert. denied, 499 U.S. 979, 111 S.Ct. 1631, 113 L.Ed.2d 726 (1991), the Ninth Circuit reviewed a district court’s decision to apply Stone and bar further review of a petitioner’s Fourth Amendment claim involving his warrantless arrest. In so doing, the Court of Appeals considered what would constitute an opportunity for full and fair litigation and noted that “although the Townsend test ‘must be given great weight in defining what constitutes full and fair consideration under Stone,’ it need not ‘always be applied literally ... as the sole measure of fullness and fairness.’ ” Terrovona, 912 F.2d at 1178 (quoting, Mack v. Cupp, 564 F.2d 898, 901 (9th Cir.1977)). The court found that the extent to which claims were presented and considered by the state courts was an important factor. Id. at 1178-79 (citing Abell v. Raines, 640 F.2d 1085, 1088 (9th Cir.1981)). In the instant case, the trial court denied Petitioner’s motion to suppress and the Arizona Supreme Court affirmed that decision. Petitioner later challenged the adequacy of both of these determinations by claiming that Petitioner’s father should have been called as a witness and that polygraph evidence supported Petitioner’s version of events. These allegations were considered and rejected by the trial court in a Rule 32 proceeding. Petitioner has provided no new factual information, and all of the known facts were previously presented to the state courts. Thus, Petitioner’s claim is legal rather than factual in nature; and, in effect, he is merely seeking an alternative ruling. Stone clearly applies to the facts of this ease; therefore, Petitioner may not be granted relief on this claim. B.) Fifth Amendment: Petitioner also attempts to raise Fifth Amendment issues relating to his confession. In response, Respondents contend that Petitioner has not previously presented this specific claim to the state courts and has proee-durally defaulted his right to do so. Further, Respondents contend that Petitioner must demonstrate legitimate cause and actual prejudice before this Court may review his Fifth Amendment claim on-the-merits. (Mot. Summ. J. at 5-6.) Rather than addressing Respondents’ argument, however, Petitioner merely argued the merits of his claim and contended that Stone does not preclude this Court from considering the claim. 1) PRINCIPLES OF EXHAUSTION AND PROCEDURAL DEFAULT: Before a federal court may review a petitioner’s claims on the merits, the petitioner must have presented in state court every claim raised in the federal petition. This is referred to as the “exhaustion requirement.” Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). To properly exhaust state remedies, the petitioner must “fairly present” his claims to the state’s highest court in a proeedurally appropriate manner. See Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). A claim is “fairly presented” if the petitioner has described the operative facts and legal theories on which his claim is based. Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 513-14, 30 L.Ed.2d 438 (1971). Generally, there are two methods by which a petitioner may satisfy the exhaustion requirement. First, he may “actually” exhaust his claims by providing the state court with an opportunity to review the relevant facts and contentions in a proeedurally appropriate manner. Second, he may “technically” exhaust his claims by showing either that a state court has already found his claims defaulted because he failed to follow proper procedures or, if he never presented his claims in any forum, that no state remedies remain available to him at the time he filed his federal habeas petition. Jackson v. Cupp, 693 F.2d 867, 869 (9th Cir.1982) (citing Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 1570 n. 28, 71 L.Ed.2d 783 (1982)). If a petitioner has presented a claim in state court, but the court found the claim proeedurally barred based on an independent and adequate state procedural ground (a form of “technical” exhaustion), a federal court may not reach the merits of the claim absent a showing of legitimate cause and actual prejudice or a showing that the failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991); Engle v. Isaac, 456 U.S. 107, 126-129, 102 S.Ct. 1558, 1571-72, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). “Cause” is a legitimate excuse for the default and “prejudice” is actual harm from the alleged constitutional error. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir.1984). “Cause” ordinarily turns on whether a petitioner can demonstrate that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)). If the claim has never been presented to a state court, a federal habeas court may determine whether state remedies remain available to hear the claim at the time the habeas petition was filed. See Harris v. Reed, 489 U.S. 255, 269-70, 109 S.Ct. 1038, 1046-47, 103 L.Ed.2d 308 (1989) (O’Connor, J., concurring) (“[W]here a federal habeas petitioner raises a claim which has never been presented in any state forum, a federal court may properly determine whether the claim has been proeedurally defaulted under state law, such that a remedy in state court is ‘unavailable’ within the meaning of § 2254(c).”); Teague v. Lane, 489 U.S. 288, 299, 109 S.Ct. 1060, 1069, 103 L.Ed.2d 334 (1989) (noting same); See also White v. Lewis, 874 F.2d 599, 602 (9th Cir.1989) (“Dismissal of federal habeas petition for failure to exhaust is appropriate only if the prisoner had a currently available state remedy at the time of the federal petition.”). Pursuant to current rules of criminal procedure, Arizona prisoners may raise federal constitutional challenges to their convictions or sentences in state court pursuant to Rule 32.1. State court review or relief may, however, be limited by the related preclusion provisions of Rule 32.2. Rule 32.2 provides, in part: a. Preclusion. A defendant shall be precluded from relief under this rule based upon any ground: (2) Finally adjudicated on the merits on appeal or in any previous collateral proceeding; (3) That has been waived at trial, on appeal, or in any previous collateral proceeding. b. Exceptions. Rule 32.2(a) shall not apply to claims for relief based on Rules 32.1(d), (e), (f), and (g). When a claim under [these sub-sections] is raised in a successive or untimely petition, the petition must set forth the reasons for riot raising the claim in the previous petition or in a timely manner. If meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner, the petition shall be summarily dismissed. Ariz.R.Crim.P. 32.2 (as amended nunc pro tunc Sept. 24, 1992) (emphasis added). The Comment to Rule 32.2 provides: [S]ome issues not raised ... in a previous collateral proceeding may be deemed waived without considering the defendant’s personal knowledge, unless such knowledge is specifically required to waive the constitutional right involved. If an asserted claim is of sufficient constitutional magnitude the state must show that the defendant knowingly, voluntarily and intelligently waived the claim. For most claims of trial error, the state may simply show that the defendant did not raise the error ... in a previous collateral proceeding and that would be sufficient to show that defendant has waived the claim. Comment, Ariz.R.Crim.P. 32.2. Thus, pursuant to rule 32.2, state prisoners may not be granted relief on any claim which could have been raised in a prior Rule 32 proceeding. Only if a claim falls within subsections (d), (e), (f), or (g) of Rule 32.1 and the petitioner can justify why the claim was omitted from a prior petition will the preclu-sive effect of Rule 32.2 be avoided. Therefore, when presented with a claim that has not been raised previously in state court, a federal court must determine whether a petitioner has state remedies currently available to him pursuant to Rule 32. If there are no state remedies currently available to the petitioner, he has “technically” exhausted the “new” claim and the petitioner must demonstrate legitimate cause and actual prejudice before a federal habeas court will perform an on-the-merits review. 2) ANALYSIS: A review of the claim at issue reveals that it was not previously presented to the state courts on Petitioner’s direct appeal or in either of two post-conviction relief proceedings. Moreover, a review of the rules indicates that no state remedies remain available for the presentation of this claim in the state system. Petitioner’s Fifth Amendment claim does not fit within the exceptions to Rule 32.2; and Petitioner would, therefore, be unable to obtain review or relief through a successive post-conviction relief proceeding at this time. Thus, the Court finds that Petitioner’s claim is both exhausted and procedurally defaulted. Moreover, in light of Petitioner’s failure even to attempt to demonstrate legitimate cause and actual prejudice, the Court finds that his claim may not be reviewed on-the-merits and he may not be granted habeas relief. Claim 2: Whether Petitioner’s Sixth Amendment right was violated by the admission of a nontestifying codefend-ant’s confession. Petitioner contends that he is entitled to federal habeas relief because his Sixth Amendment right of Confrontation was violated by the admission of a nontestifying codefendant’s confession. In opposition, Respondents contend that Petitioner is attempting to rely upon a new rule of law not applicable to his case on collateral review. In the alternative, Respondents contend that no constitutional error occurred because the codefendant’s confession was independently admissible against Petitioner. Respondents also argue that even if a constitutional error occurred, the error was harmless. A.) Facts: At trial, both Petitioner’s own confession as well as that of his codefendant, Joey Enci-nas, were admitted into evidence. Petitioner moved to suppress all evidence, including his confession, that was obtained after his arrest on the grounds that his warrantless arrest was unlawful. (Ex. 2 at 13.) The trial court denied his motion to suppress finding that the officers were admitted voluntarily into Petitioner’s home. (Ex. 1 at 22.) Petitioner also objected to the admission of Encinas’ confession and, on several occasions, unsuccessfully sought a severance. (Ex. 11, R.T., 12/15/80 at 55-66; Ex. 12, R.T., 12/16/80 at 62-64, 127-130; Ex. 13, R.T., 12/17/80 at 133-34.) The trial court denied the motion to sever finding “there really are no inconsistencies regarding the major elements of the crimes, and that there certainly wouldn’t be any devastating effect as to the defendant Gerlaugh with the admission of both statements.” (Ex. 11, R.T., 12/15/80 at 62.) The trial court instructed the jury that the confessions could only be considered against the confessor and not his codefendant. (Ex. 14, R.T., 12/18/80 at 108.) Detective Brice testified at trial that, after telling various false stories for about an hour, Encinas stated that he was going to tell the truth. (Ex. 12, R.T., 12/16/80 at 126.) Detective Brice related the following statement given by Encinas: On January 24, 1980, Encinas, Matthew Leisure, and Petitioner had been socializing and drinking Jack Daniels whiskey at the residence of Shirley Jones in Mesa. (Id. at 125.) After leaving Ms. Jones’ house, the three of them hitchhiked until picked up by an individual driving a large white four-door vehicle. (Id. at 132.) Petitioner was sitting in the back seat on the passenger side (Id.) when Petitioner pulled out a .357 Colt Python. (Ex. 13, R.T., 12/17/80 at 48.) Petitioner directed the driver to a dirt road off Arizona Avenue at which time Petitioner moved into the front seat, placing the victim between Petitioner and Leisure and leaving Encinas alone in the back seat. (Ex. 12, R.T., 12/16/80 at 133.) After they all exited the car, Petitioner demanded money from the victim. (Id.) The victim then somehow took the gun away from Petitioner and attempted to shoot Leisure. (Id. at 134.) After the victim tried to fire the gun, someone uttered a statement substantially similar to “[t]he gun’s not loaded, sucker.” (Id.) When the victim attempted to flee, Petitioner told them to get the victim at which time Leisure pursued and tackled him. (Id. at 135.) All three then began to beat him. (Id.) The beating lasted 10-15 minutes after which Petitioner informed the victim that “[wje’re going to have to kill you.” (Id. at 136.) Petitioner then instructed the other two men to drag the victim up onto the road. (Id. at 137.) Petitioner drove over the victim in the victim’s car. (Id.) Petitioner missed the victim several times because the victim rolled out of the way, but then eventually ran over him at least two or three times. (Ex. 12, R.T., 12/16/80 at 137.) After Petitioner ran over the victim, he was still moaning so Petitioner presented Encinas with a screwdriver and instructed Encinas to stab the victim. (Id. at 138.) Encinas attempted to stab the victim, but he could not bring himself to stab the victim hard enough to penetrate the skin. (Id.) Leisure then grabbed the screwdriver. The victim was stabbed a total of approximately 30-40 times in the head and face. (Id. at 139; Ex. 13, R.T., 12/17/80 at 56.) Petitioner also stabbed the victim several times after Leisure. (Ex. 13, R.T., 12/17/80 at 57-58.) They all carried the victim into the field and after the stabbing, all three attempted to cover the body in alfalfa. (Ex. 12, R.T., 12/16/80 at 138-39.) After the murder all three got into the white car and drove a short distance until the rear tire blew out. (Ex. 11, R.T., 12/15/80 at 29.) Encinas and Leisure then separated from Petitioner who, after obtaining a ride from a driver in a red pickup truck, pulled alongside and picked them up. (Id.; Ex. 13, R.T., 12/17/80 at 52.) After driving a short distance Encinas watched Petitioner pull a gun on the driver. (Ex. 11, R.T., 12/15/80 at 29; Ex. 13, R.T., 12/17/80 at 53.) At one point Encinas jumped out of the truck because he wanted to get away from the situation, but Petitioner instructed him to get back in the truck. (Ex. 11, R.T., 12/15/80 at 29.) Detective Weiss testified at trial that Petitioner gave the following statement: Petitioner left Chandler with Leisure and Encinas and started hitchhiking toward Mesa. They were hitchhiking with the intent to rob whoever offered them a ride. (Ex. 13, R.T., 12/17/80 at 83, 101.) After a large white car pulled over, Petitioner entered the vehicle and was seated in the rear seat on the passenger side. (Id.). Almost immediately after they began moving, Petitioner pulled a .357 magnum, placed it against the driver’s head and instructed him where to drive. (Id. at 84.) After they stopped, Petitioner ordered the victim to exit the car, pointed the gun at him and demanded his money. (Id. at 85.) The victim then grabbed the weapon and turned it upon the three men and attempted to fire. (Id. at 85-86.) Petitioner said to the victim, “You just fucked up. There’s no bullets in the gun.” (Id. at 86.) Petitioner then knocked the victim to the ground at which point all three men began beating him. (Id. at 86.) After the beating, Petitioner decided to kill the victim to ensure that they could not be identified for the robbery and ordered Enci-nas and Leisure to drag the victim onto the road while he went to the car. (Id. at 87.) Petitioner went to the car to run over the victim. (Id.) Petitioner ran over the victim and stopped the car on the victim at one point in an attempt to spin the tire and kill the victim. (Id. at 88.) Nevertheless, Petitioner noticed the victim was alive so he took a screwdriver he found and stabbed the victim a large number of times. (Id. at 90-91.) Petitioner did not know if anyone else stabbed the victim. (Id.) After all three attempted to hide the body by covering it in alfalfa, they all left in the victim’s car with Petitioner driving. (Id. at 91.) B.) Substantive Law: Petitioner contends that the admission of his codefendant’s confession constituted error under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and more specifically, Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). In opposition, Respondents contend that En-cinas’ confession was lawfully admitted against Petitioner at the time of his trial pursuant to Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), and that Cruz established a “new rule” of law that may not be retroactively applied to Petitioner’s case on collateral review. Moreover, Respondents contend that Encinas’ confession could be independently admitted against Petitioner. Finally, Respondents contend that, even if Cruz may be applied to Petitioner’s case and the confession could not be independently admitted against Petitioner, any error in admitting Enemas’ confession was harmless. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court crafted a narrow exception to the principle that juries will follow their instructions and held that jury instructions which attempted to limit consideration of a nontestifying eodefendant’s confession were constitutionally inadequate to preserve a non-confessing defendant’s Sixth Amendment right to confront the witnesses against him. Bruton, 391 U.S. at 136, 88 S.Ct. at 1628; see also Richardson v. Marsh, 481 U.S. 200, 207, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987). One year after Bruton was decided the Supreme Court held that such errors do not necessarily mandate a new trial and may be reviewed under a harmless error analysis. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Approximately 10 years later the Supreme Court addressed the effect of Bruton when a defendant has himself confessed and his confession is substantially similar or “interlocks” with that of a codefendant. Upon review the Court held that in such eases, proper limiting instructions sufficiently preserve a defendant’s Sixth Amendment rights. Parker v. Randolph, 442 U.S. 62, 75, 99 S.Ct. 2132, 2140, 60 L.Ed.2d 713 (1979). In 1987, the Supreme Court decided Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). In Cruz the Court overruled Parker and held that in cases “where a nontestifying eodefendant’s confession incriminating the defendant is not directly admissible against the defendant ... the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him.” Cruz, 481 U.S. at 193, 107 S.Ct. at 1719. Confrontation Clause violations are trial type errors and are subject to a harmless error analysis. Cruz, 481 U.S. at 194, 107 S.Ct. at 1719-20; see also Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Mata v. Ricketts, 981 F.2d 397 (9th Cir.1992), cert. denied, — U.S. —, 115 S.Ct. 436, 130 L.Ed.2d 348 (1994). The harmless error test until recently required a federal habeas court to determine whether, based on the entire record, it appeared “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). However, the Supreme Court modified the test to be applied on collateral review. A federal court on habeas review must now apply a more deferential standard and its inquiry is whether the error had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v. Abrahmson, 507 U.S. -, -, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). Only if the admission of the codefendant’s confession resulted in “actual prejudice” is Petitioner entitled to habeas relief. Id. at -, 113 S.Ct. at 1722. Although it is impossible to determine whether the jury used a codefendant’s confession to determine a petitioner’s guilt, several courts have delineated factors that are relevant to a harmless error analysis. The Supreme Court suggested that the strength of the prosecution’s case against the petitioner, the presence of evidence to substantiate or contradict the codefendant’s confession and the importance of the codefendant’s confession should be considered by a reviewing court. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). Other relevant factors include the interlocking nature of the codefendant’s confession, Cruz, 481 U.S. at 192-93, 107 S.Ct. at 1719, objective evidence that corroborates or contradicts the petitioner’s confession and the attempts made by the petitioner to repudiate his own confession. Samuels v. Mann, 13 F.3d 522, 526-27 (2nd Cir.1993), cert. denied, — U.S. —, 115 S.Ct. 145, 130 L.Ed.2d 85 (1994). C.) Analysis: Applying the above mentioned harmless error analysis, the Court finds that, assuming Cruz applies retroactively and the codefendant’s confession could not be independently admitted against Petitioner, any constitutional error that may have resulted from the admission of Encinas’ confession is harmless error. The prosecution’s main evidence against Petitioner was his own confession presented through the testimony of Detective A1 Weiss. [T]he defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. Though itself an out-of-court statement, it is admitted as reliable evidence because it is an admission of guilt by the defendant and constitutes direct evidence of the facts to which it relates.... An observer may not correctly perceive, understand, or remember the acts of another, but the admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Bruton v. United States, 391 U.S. 123, 139-40, 88 S.Ct. 1620, 1630, 20 L.Ed.2d 476 (1968) (WHITE, J., dissenting). Petitioner’s confession was comprehensive, providing evidence to support each element of the crimes charged and of which Petitioner was found guilty by a jury. Most importantly, the truth of Petitioner’s confession went unchallenged. As the Supreme Court noted in Cruz concerning the harmfulness of interlocking confessions: It [that a codefendant’s confession will be more damaging if it confirms the defendant’s confession] might be otherwise if the defendant were standing by his confession, in which case it could be said that the codefendant’s confession does no more than support the defendant’s very own case. But in the real world of criminal litigation, the defendant is seeking to avoid his confession — on the ground that it was not accurately reported, or that it was not really true when made. Cruz, 481 U.S. at 192, 107 S.Ct. at 1718-19. In the present case Petitioner did not seek to avoid his confession on the grounds that the confession was involuntarily given by Petitioner, untrue or improperly reported by Detective Weiss. Rather, Petitioner sought to avoid the admission of his confession on the ground that his warrantless arrest was unlawful. Petitioner did not cross-examine Detective Weiss concerning the integrity of the interrogation process or the voluntariness of the confession. Rather, Petitioner’s cross-examination of Detective Weiss consisted of eliciting testimony to support his defense of intoxication and to confirm the few areas of divergence between Petitioner’s and Encinas’ confession — whether Encinas and Leisure joined Petitioner in the intent to rob, whether the victim drove the entire time and whether Petitioner handed the screwdriver to anyone else. (Ex. 13, R.T., 12/17/80 at 100-102.) Therefore, Encinas’ confession would not have the devastating effect on Petitioner that the Supreme Court was concerned about in Cruz. The prosecution also presented to the jury evidence that corroborated Petitioner’s confession. The medical examiner’s testimony and the photographs of the victim’s injuries corroborated Petitioner’s account of beating, running over with the car and stabbing the victim. (Ex. 12, R.T., 12/16/80 at 33-34, 82-96.) Further corroborating evidence came in the form of Sergeant Bratcher’s testimony regarding the flat tire and the blood and hair found on the ear {Id. at 19, 23) and Detective Palmer’s testimony regarding the tire tracks found at the murder scene and along the path the ear traveled until it was abandoned (Id. at 46-18, 51-54) and the condition of the transmission (Id. at 56). Finally, the screwdriver found at the scene of the murder corroborated Petitioner’s confession. (Id. at 38-39.) The interlocking nature of the eodefend-ant’s confession is another relevant factor to be considered when determining whether the admission of a codefendant’s confession is harmless error. Cruz, 481 U.S. at 192-93, 107 S.Ct. at 1719. Encinas’ confession is similar to Petitioner’s in most respects. The main differences between the confessions are: 1) Petitioner stated that all three intended to rob whoever picked them up, and Enemas stated he was surprised when Petitioner pulled out the gun; 2) Petitioner stated that the victim drove the entire time to the canal, but Encinas said that Petitioner drove part of the time; and 3) Petitioner stated that he did the stabbing and did not remember if anyone else stabbed the victim, as opposed to Encinas’ statement that he attempted to stab the victim before handing the screwdriver to Leisure. These differences do not render the admission of Encinas’ confession harmful. Petitioner’s confession indicates greater involvement in the murder, instead of the usual passing of the blame. Also the inconsistencies would not absolve Petitioner of any guilt, given the consistent statements concerning Petitioner’s involvement in the murder. See Toolate v. Borg, 828 F.2d 571, 576 (9th Cir.1987) (finding inconsistency in codefendant’s confession of who actually shot series of bullets is irrelevant because consistent testimony of presence and assistance was sufficient to support conviction regardless of whether Petitioner of codefendant actually fired shots). Finally, the Court considered the objective evidence that corroborates the codefendant’s confession. In addition to the evidence discussed above that corroborated Petitioner’s confession, the following evidence found at the murder scene corroborates Encinas’ confession: 1) an eagle necklace belonging to Encinas (Ex. 12, R.T., 12/16/80 at 40-43), 2) the shoelace that Encinas described as being used to tie the victim (Id. at 44), and 3) parts of the rubber glove used by Encinas during the beating (Id. at 40). Also, given Encinas’ directions, the detectives were able to find the jacket Encinas was wearing and discarded the night of the murder. (Ex. 13, R.T., 12/17/80 at 123-24.) Therefore, given Petitioner’s comprehensive confession, the validity of which he did not challenge, the evidence that corroborated Petitioner’s and Encinas’ confessions and the extent that the confessions interlocked, the Court finds that Encinas’ confession did not have a substantial and injurious effect or influence on the jury. Petitioner’s conviction cannot be overturned based on claim 2. Claim 3: Whether the trial court erred in not requiring the State to elect between premeditation and felony murder. Petitioner alleges that he is entitled to federal habeas relief because he was denied due process and a fair trial by the State’s refusal to select a theory of guilt and the duplicitous nature of the indictment charging him with the offense of murder. Petitioner was indicted by a Maricopa County Grand Jury on February 6, 1980. (Ex. 2 at 1.) Count III of the indictment charged each of the three codefendants with first degree murder pursuant to A.R.S. § 13-1105. Section 13-1105(A)(1) and (A)(2) defines first degree murder and provides that it may be accomplished either with premeditation or by causing the death of another while in the course of or in furtherance of specific enumerated felonies. Petitioner contends that charging both premeditated murder and felony murder within one count of the indictment, that the trial court’s subsequent jury instructions allowing for proof of first degree murder in either form, and that the trial court’s refusal to require the State to select one or the other of these two theories combined to deprive him of due process. (Pet. at 17-20.) Moreover, Petitioner contends that the single form of verdict utilized in this ease would not ensure that the jury reached a unanimous determination as to the method by which Petitioner committed first degree murder. In opposition, Respondents contend that Arizona has defined first degree murder as a single offense which may be committed in alternative fashions. Respondents further assert that this method of defining first degree murder has been found constitutional by the United States Supreme Court in Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). Respondents, therefore, request summary judgment with respect to this claim. In response, Petitioner effectively concedes applicability of Schad, but argues that because it was a plurality opinion, the Supreme Court may avoid the principle of stare decisis and, therefore, this Court should grant Petitioner relief. A.) Law: In Schad the Supreme Court found constitutional Arizona’s practice of accepting general verdicts for first degree murder even though there was no way to determine whether the jury reached unanimity with respect to the manner in which it was accomplished. Schad, 501 U.S. at 645, 111 S.Ct. at 2504; see also Sullivan v. Borg, 1 F.3d 926, 927 (9th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 931, 127 L.Ed.2d 223 (1994) (applying Schad principles to California’s first degree murder statute). The Court noted that under Arizona law felony murder and premeditated murder were not separate offenses. Rather they were alternative means of satisfying a single mens rea element of first degree murder. Schad, 501 U.S. at 637, 111 S.Ct. at 2499-2500. In light of this holding, this Court’s task is to determine whether any constitutional violations occurred in relation to the method in which the crime was charged and prosecuted or the manner in which the jury was instructed. B.) Analysis: Petitioner contends that the indictment charging him with first degree murder was duplicitous because it charged two different offenses in one count, and thereby deprived him of sufficient notice of the charges alleged. The Court finds Petitioner’s argument squarely foreclosed by Schad. In Arizona premeditated murder and felony murder lead to one crime — first degree murder. See State v. Berndt, 138 Ariz. 41, 45, 672 P.2d 1311, 1315 (1983). Conjunctively charging alternative means of committing an offense in a single count of an indictment is not a deprivation of due process nor does it deprive a defendant of adequate notice of the offense charged. See United States v. UCO Oil Co., 546 F.2d 833, 838 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977). Consequently, no constitutional violation occurred by the trial court’s refusal to compel the State to select a particular “theory” of murder. Moreover, Petitioner’s challenge to the single form of verdict, a form of first degree murder as opposed to felony murder or premeditated murder, is unavailing for the same reasons. Schad, 501 U.S. at 645, 111 S.Ct. at 2504; see also Suniga v. Bunnell, 998 F.2d 664, 668 (9th Cir.1993) (following Schad noted that states may submit both malice-murder and felony murder to a jury without a requirement of unanimity with respect to either method). The Court, therefore, denies Petitioner’s third claim for relief. Claims 4 & 8: Whether the trial court erred in not giving a lesser included offense instruction. As his fourth claim Petitioner contends that the trial court erred by failing to provide a lesser included offense instruction. Specifically, Petitioner contends that trial court erred by not instructing the jury on second-degree murder as a lesser included offense to first degree murder. Petitioner contends that he was entitled to the requested instruction pursuant to Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). In his eighth and related claim, Petitioner contends that the trial court violated his due process rights by providing confusing and erroneous jury instructions. Specifically, Petitioner contends that the trial court provided an intoxication instruction and informed the jury that such evidence could be considered when considering issues of intent or knowledge. Petitioner asserts, however, that without a lesser included offense instruction, the jury was incapable of giving meaningful effect to the intoxication instruction. Respondents argue that, despite the fact that Petitioner was prosecuted for first degree murder under dual theories of premeditation and felony murder, the evidence in this case simply did not warrant the issuance of a second-degree murder instruction. A.) Confusing or Erroneous Instructions: Petitioner requested a jury instruction on intoxication. (Ex. 14 at 36.) The State opposed Petitioner’s request contending that there was no evidence warranting an intoxication instruction. (Id.) Despite the State’s opposition, however, the trial court noted that there was some testimony regarding Petitioner’s consumption of alcohol and determined that it would instruct the jury on the effects of intoxication. (Id. at 37, 47.) Throughout closing arguments, the State argued that the evidence demonstrated both felony murder and intent by Petitioner to commit the crimes for which he was charged. (See e.g. Ex. 14 at 54, 56.) Following closing arguments, the trial court explained for the jury the legal effect of intoxication as follows: [N]o act committed by a person while intoxicated is less criminal by reason of his having been in such condition. However, for the crimes of armed robbery, kidnapping and murder first degree, there must be proof that the defendant acted intentionally or knowingly. If you determine that the defendant was intoxicated at the time, you may consider the fact that he was intoxicated in determining whether he could have intentionally or knowingly committed the crimes. (Ex. 14 at 110, 112-13.) In essence, Petitioner argues that he was entitled to a second-degree murder instruction on the ground that his voluntary intoxication negated some element necessary for conviction of first degree murder. While Petitioner attempts to utilize the fact that the intoxication instruction was given as a means of bootstrapping his Beck claim, the Court finds that Petitioner was not legally entitled to the intoxication instruction under state law. In Arizona, a criminal defendant is entitled to a voluntary intoxication instruct tion where intent is a necessary element of' the crime charged. See A.R.S. § 13-503. The mens rea required under Arizona’s first degree murder statute is intentionally or knowingly. See A.R.S. § 13-1105(A)(1). Where a defendant is charged with knowingly committing first degree murder, a voluntary intoxication instruction is not permitted. State v. Rankovich, 159 Ariz. 116, 122, 765 P.2d 518, 524 (1988). This rule holds where the defendant is charged with intentionally or knowingly committing first degree murder. State v. Schurz, 176 Ariz. 46, 55, 859 P.2d 156, 164 (Ariz.1993), cert. denied, - U.S. -, 114 S.Ct. 640, 126 L.Ed.2d 598 (1993). Here, Petitioner was charged in the indictment with knowingly causing the death of Scott Schwartz. (Ex. 2 at 1.) Accordingly, it was improper under state law for the court to allow the jury to consider voluntary intoxication. The fact that an incorrect jury instruction may have been utilized is not, however, a basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 72-73, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991). To receive habeas relief from an otherwise constitutional conviction on the basis of improper jury instructions, a petitioner must prove that the allegedly improper jury instruction violated some right guaranteed by the Fourteenth Amendment. McGuire, 502 U.S. at 72-73, 112 S.Ct. at 482 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)); see also Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir.1992) (en banc), cert. denied, — U.S. —, 113 S.Ct. 1600, 123 L.Ed.2d 163 (1993). Thus any confusion engendered by the trial court’s instruction regarding intoxication does not serve as a basis for federal habeas relief. B. Lesser Included Offense Instruction: In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the Supreme Court held that where the evidence in a capital case would support a conviction on a lesser included offense, the jury must be instructed on the appropriate lesser included offense. Beck, 447 U.S. at 635, 100 S.Ct. at 2388. The Court noted that a failure to provide the jury with the option of convicting on a lesser offense increased the risk of an unwarranted conviction for capital murder. Beck, 447 U.S. at 637, 100 S.Ct. at 2389. Further refining the requirement of Beck, the Supreme Court held that due process only requires a lesser included offense instruction when such an instruction is supported by the evidence adduced at trial. See Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Moreover, the Court held that “[w]here no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process.” Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 3159, 82 L.Ed.2d 340 (1984). As discussed previously, first degree murder in Arizona may be proven by one of two means. The State may either prove that the defendant committed the murder with premeditation or in the course or furtherance of an enumerated felony. See A.R.S. § 13-1105(A). In the instant case, the State did not select one particular theory and, instead, presented evidence which it then argued was sufficient to prove either form of first degree murder. As noted above, however, Petitioner was not entitled to the instruction on voluntary intoxication under state law and, therefore, such an instruction could not lawfully impact upon the charge of knowingly committing first degree murder. Accordingly, it may not serve as a basis for a mandatory lesser included offense instruction or an asserted Beck violation. Moreover, no lesser included offense instruction was available for the alternative theory of felony murder. “Under Arizona law ... there is no lesser included homicide offense of the crime of felony murder since the mens rea necessary to satisfy the premeditation element of first degree murder is supplied by the specific intent required for the felony.” State v. Arias, 131 Ariz. 441, 443-44, 641 P.2d 1285, 1287-88 (1982); see also State v. LaGrand, 153 Ariz. 21, 30, 734 P.2d 563, 572 (1987), cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987) (citations omitted). Thus, Petitioner was not lawfully entitled to a lesser included offense instruction. Intoxication could not lawfully be considered in relation to whether Petitioner knowingly caused the death of the victim and, therefore, no instruction for second degree murder was necessary. Further, there is no lesser included offense to the alternative theory of first degree murder, i.e. felony murder. Accordingly, Petitioner may not be granted habeas relief on either of his claims. Claims 5 & 9: Whether the trial court erred in admitting certain photographs and/or the testimony of witness Roche. As his fifth claim for relief Petitioner contends that his due process rights were violated by the trial court’s admission into evidence of gruesome photographs. This claim was raised on direct appeal and the Arizona Supreme Court found that “while the photographs are admittedly gruesome, we cannot say, after a careful review of the evidence that the trial court abused its discretion in admitting the photographs.” State v. Gerlaugh, 134 Ariz. 164, 169, 654 P.2d 800, 805 (1982). The Court noted that the photographs may have been useful to show how the crime was committed and to assist the jury in understanding the medical examiners testimony. Id. Thus, Petitioner’s claim clearly raises a challenge to the propriety of a state law evidentiary ruling. Similarly, Petitioner’s ninth claim also alleges error in the state court’s admission of evidence. Specifically, Petitioner contends that the trial court erred in admitting into evidence the hypnotically refreshed testimony of Harry Roche. This claim was also raised on direct appeal and the Arizona Supreme Court found that, although the admission of the evidence at trial was an error of state law, the error was harmless. The Arizona Supreme Court based its conclusion upon the fact that Mr. Roche provided only general testimony unrelated to the murder itself and that even at trial he was unable to identify Petitioner. Gerlaugh, 134 Ariz. at 171, 654 P.2d at 807. A Petitioner may be entitled to habeas relief for wrongly admitted evidence only when the admission of the evidence at issue renders the state proceeding so fundamentally unfair as to violate federal due process. Estelle v. McGuire, 502 U.S. 62, 72-73, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991). Federal courts do not, however, sit as a “state supreme court of errors.” Jammal v. Van de Kamp, 926 F.2d 918 (9th Cir.1991). The United States Supreme Court has described a denial of due process in a criminal proceeding as follows: [It] is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial. Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941); see also Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir.1986), cert. denied, 479 U.S. 1068, 107 S.Ct. 958, 93 L.Ed.2d 1006 (1987). The photographs at issue, although gruesome in nature, were not so inflammatory or prejudicial as to render the trial fundamentally unfair. Their admission did not constitute a violation of fundamental fairness. Petitioner does not, therefore, state a colorable claim for relief. S