Full opinion text
ORDER DENYING ADDITIONAL CLAIMS ON THE MERITS LEGGE, District Judge. DEATH PENALTY CASE I Petitioner James Richard Odie, a California prisoner under sentence of death, applied to this court for a writ of habeas corpus in 1988. In two prior orders, this court denied many of the claims raised in the petition. See Odle v. Vasquez, 754 F.Supp. 749 (N.D.Cal.1990); Odle v. Calderon, 884 F.Supp. 1404 (N.D.Cal.1995). This court subsequently granted an evidentiary hearing on two of Odle’s claims. This order addresses Odle’s remaining claims. II The federal habeas corpus statute authorizes this court to review a state-court criminal conviction “only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The important—but limited—purpose of the writ of habeas corpus is to “protect[ ] individuals from unconstitutional convictions and ... to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair.” O’Neal v. McAninch, — U.S. -, -, 115 S.Ct. 992, 997, 130 L.Ed.2d 947 (1995); see also Brecht v. Abrahamson, 507 U.S. 619, 632-34, 113 S.Ct. 1710, 1719, 123 L.Ed.2d 353 (1993). Even in this limited role, federal habeas review delays finality and burdens not only state and federal resources but also state-federal relations. See, e.g., Brecht, 507 U.S. at 634-39, 113 S.Ct. at 1720-22; McCleskey v. Zant, 499 U.S. 467, 490-91, 111 S.Ct. 1454, 1468-69, 113 L.Ed.2d 517 (1991); Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770-71, 66 L.Ed.2d 722 (1981). Habeas doctrines and procedures thus balance the protection the writ offers from unlawful custody against “the presumption of finality and legality” (see Brecht, 507 U.S. at 633, 113 S.Ct. at 1719) that attaches to a state-court conviction after direct review. To this end, a federal habeas court must in most cases accord a presumption of correctness to state-court findings of fact. 28 U.S.C. § 2254(d). Also, the burden is generally on the habeas petitioner to prove, by a preponderance of the evidence, the facts necessary to support the claim. See, e.g., Garlotte v. Fordice, — U.S. -, -, 115 S.Ct. 1948, 1952, 132 L.Ed.2d 36 (1995); Sumner, 449 U.S. at 551, 101 S.Ct. at 771; McKenzie v. McCormick, 27 F.3d 1415, 1419 (9th Cir.1994). And a federal court need not set aside a state conviction or sentence for every constitutional violation. In most cases, habeas relief will be granted only if the error was either “structural” or “had substantial and injurious effect or influence in determining the jury’s verdict.” See Sullivan v. Louisiana, 508 U.S. 275, 279-83, 113 S.Ct. 2078, 2082-83, 124 L.Ed.2d 182 (1993); Brecht, 507 U.S. at 628-30, 637, 113 S.Ct. at 1717, 1722. With these principles in mind, this court addresses the merits of Odle’s remaining claims. Ill Claim G Odie claims that he was denied the effective assistance of trial counsel because counsel did not provide mitigating expert testimony at the penalty trial. This court denied this claim in its 1990 order. See Odle, 754 F.Supp. at 772-74. Odie then moved for reconsideration of the court’s decision on this claim. Odie now argues specifically that trial counsel could and should have presented expert testimony that 1) linked Odle’s mental condition to his actions at the time of the offense and 2) supported the two mental-state statutory mitigating factors. He was prejudiced by these failures, Odie contends, because readily available expert testimony would have diminished his mental and moral responsibility for the offenses. The court has reviewed this claim, its prior order, the cases cited by Odie and more recent Ninth Circuit cases on ineffective assistance of counsel. See, e.g., Hendricks v. Calderon, 70 F.3d 1032 (9th Cir.1995); Bonin v. Calderon, 59 F.3d 815 (9th Cir.1995); Williams v. Calderon, 52 F.3d 1465 (9th Cir. 1995). As this court noted in its prior order, however, “[m]ere citation of cases only goes so far.” Odle, 754 F.Supp. at 773. On the record in this case, trial counsel’s preparation and presentation of the mental-state evidence was not constitutionally deficient. The investigation that Odle’s counsel conducted of Odle’s mental condition is discussed at pages 1382 and 1386, below. At the guilt trial, Odle’s counsel presented extensive expert testimony about Odle’s brain injury and its aftermath. At the penalty trial, he clearly understood—and told the jury—that the mental state mitigating factors require “a completely different consideration than what [the jury] had to decide in the guilt phase.” 29 RT 63-64. The thrust of his entire penalty-trial argument was that Odie should be deemed less culpable for the offenses and the jury should show mercy on account of his brain injury. See generally 29 RT 67-86. As trial counsel emphasized to the jury, this argument was supported by the guilt-trial expert and lay testimony. Where mitigating evidence is presented at the guilt trial and the jury is instructed to consider it at the penalty trial, trial counsel is not necessarily ineffective for not presenting additional evidence at the penalty trial. See Williams, 52 F.3d at 1471. Here, as in Williams, trial counsel could have presented more expert testimony about the' mitigating factors. Given the presentation at the guilt trial, however, this court cannot say that trial counsel’s failure to do so was objectively unreasonable. The guilt trial focused on Odle’s mental state and his diminished capacity as a result of his lobectomy. At the guilt trial, Odle’s attorney presented the testimony of Dr. Blum, the neurosurgeon who operated on Odie, neurologist Dr. Holtz, and psychiatrist Dr. Thompson. The issue of Odle’s mental state was squarely presented to the jury, and it rejected the experts’ conclusions. For the reasons set forth here and in its 1990 order, this court DENIES Odle’s renewed claim of ineffective assistance of counsel for failure to present expert mitigating evidence. See Odle, 754 F.Supp. at 773-74. Claim J Odie claims that the trial court had a sua sponte duty to hold a hearing to determine his competency to stand trial. Respondent answers that the trial court had no such duty because it had no reason to doubt Odle’s competency. A defendant is incompetent to stand trial if he lacks “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Hernandez v. Ylst, 930 F.2d 714, 716 n. 2 (9th Cir.1991). The prosecution of a defendant incompetent to stand trial violates due process. See Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). Therefore, a trial court must hold a competency hearing if it has or should have a good faith or bona fide doubt about a defendant’s competency. See Pate, 383 U.S. at 378, 385, 86 S.Ct. at 838, 842; Blazak v. Ricketts, 1 F.3d 891, 894 (9th Cir. 1993); see also Moran v. Godinez, 57 F.3d 690, 695 (9th Cir.1994) (trial court must hold hearing before allowing defendant to waive constitutional rights if it doubts defendant’s competency). The present question before this court is whether a reasonable trial judge should have doubted Odle’s competency to stand trial, given the evidence before it at any time before sentencing. See Hernandez, 930 F.2d at 716, 718. “A bona fide doubt should exist where there is substantial evidence of incompetence.” Moran, 57 F.3d at 695. All of the evidence before the trial court may be relevant, including the defendant’s conduct in court, recent suicide attempts, previous findings of ineompetency, past psychological reports, trial testimony about the defendant’s history of mental illness and any irrational behavior and available medical evaluations. See Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103; Pate, 383 U.S. at 378-79, 86 S.Ct. at 838-39; Moran, 57 F.3d at 695; United States v. Lewis, 991 F.2d 524, 527 (9th Cir.1993). Here, the trial court had before it, directly and indirectly, information about Odle’s psychiatric problems. At a pre-trial hearing, a psychiatrist testified that he had diagnosed Odie five years earlier as having psychosis with organic brain syndrome and prescribed anti-psychotic medication. IB RT 8, ll. Jail records ordered by the trial court reflect that Odie had set fire to his cell and was deemed suicidal less than a year before trial Ex. 4. County records ordered by the trial court also document “several suicide gestures and one serious attempt.” Ex. 1. Medical records admitted into evidence reflect that Odie was committed to an institution for psychiatric reasons at least three times in the ten years before the trial. Ex. 2. At both the guilt and penalty trials, lay and expert witnesses testified about his unusual post-accident behavior. See, e.g., 20 RT 28-36 (Dr. Blum); 20 RT 93,102 (Glenda Odie); 28 RT 15-17 (Michael Odie). This information is relevant to the issue of whether the trial court should have had a good-faith doubt about Odle’s competency to stand trial. This court notes, however, that most of the information related to events at least eight years before the trial; it thus carries less weight than would more contemporaneous information. Cf. Moran, 57 F.3d at 696 (information from the time of trial increases the accuracy of retrospective competency evaluations). Also, the various mental-health evaluations reach inconsistent conclusions about Odle’s ability to cooperate and whether he presented a genuine suicide risk. However, Odle’s demeanor at trial was apparently unexceptional. See Pate, 383 U.S. at 386, 86 S.Ct. at 842-43. Odle’s trial counsel did not seek a competency hearing. See Blazak, 1 F.3d at 895. Further, in light of the Dusky standard, this court deems it highly significant that none of the participants in Odle’s trial questioned his competency, even though they had the opportunity to observe him over the course of two years of pre-trial proceedings and 28 days of trial. See Hernandez, 930 F.2d at 718. In this case, where the defense on the merits was diminished capacity, every piece of evidence that supports the defense is arguably another reason why the trial court should have halted the trial and held a competency hearing. In some diminished-capacity cases, it may be necessary to do so. Here, however, the information before the trial court relevant to Odle’s competency was, for the most part, remote and inconclusive. More importantly, neither Odle’s conduct nor trial counsel identified competency as an issue. This court concludes that, on the record in this case, a reasonable trial judge would not have had a substantial doubt about Odle’s competency to stand trial. Odle’s claim that the trial court violated due process by failing to hold a sua sponte competency hearing is therefore DENIED. Claims K and L Odie claims that he was actually incompetent to stand trial and waive his' rights. To support his claims, he offers declarations from Drs. Riley and Merikangas, two mental-health experts who examined Odie in 1991. These declarations state that Odle’s ability to understand the proceedings and consult with counsel were significantly impaired by his brain damage and neurological deficits. Exs. 29, 30. Odie also offers declarations from trial counsel, a pre-trial investigator and county jail inmates. These declarations give examples of Odle’s difficulties, at the time of the trial, in responding appropriately to questions, focusing on issues being discussed, remembering things and expressing himself. Exs. 34, 35, 36, 49, 50. Respondent argues that Odle’s declarations do not support his claim that he was actually incompetent to stand trial. He also challenges the declarations of Drs. Riley and Merikangas as biased. This court applies to these claims the Dusky standard, discussed above: A defendant is incompetent if he lacks “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and a rational as well as factual understanding of the proceedings against him.” Dusky, 362 U.S. at 402, 80 S.Ct. at 789. This standard applies to retrospective determinations of competency on federal ha-beas review. See Hernandez, 930 F.2d at 716. It also applies to determinations about whether a defendant is competent to waive certain rights. See Godinez, 509 U.S. at 397-98, 113 S.Ct. at 2686. A habeas petitioner is entitled to an evidentiary hearing on the issue of his competency to stand trial “if he presents sufficient facts to create a real and substantial doubt as to his competency.” Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir.1985). Much of the discussion relating to Claim J, above, applies to Claims K and L as well. This court emphasizes again that none of the participants in Odle’s trial questioned his ability to understand the proceedings or to communicate with his counsel at the time. See Hernandez, 930 F.2d at 718 (“significant” that no one at trial questioned defendant’s competeney). In fact, trial counsel’s declaration states that Odie was “an extremely cooperative and likable client who acquiesced in virtually all decisions that I made on his behalf.” Ex. 34 at 5. These facts, and the lack of contemporaneous evidence that Odie was incompetent to stand trial, are accorded considerable weight. See Moran, 57 F.3d at 696. In the context of actual-incompetency claims, however, this court must also consider facts not presented to the trial court. See Boag, 769 F.2d at 1343. Much of the evidence that Odie now identifies as indicative of his incompetency arose either many years before trial or many years after it. Odle’s brain injury and subsequent institu-tionalizations date from the mid-1970s. See Boag, 769 F.2d at 1343 (discounting suicide attempts that occurred long before trial). The expert declarations, by contrast, were based on interviews conducted almost ten years after the trial. The declarations from those around Odie at the time of his trial— counsel, a defense investigator and the two county jail inmates — do not lead this court to doubt that Odie had a rational understanding of the proceedings against him. For the reasons discussed above, Odie is not entitled to an evidentiary hearing, or habeas relief, on these claims. The facts he has presented do not create a real and substantial doubt about his competency. And assuming the truth of his declarations, Odie has not convinced this court by a preponderance of the evidence that he was actually incompetent to stand trial or waive his right to be present. See McKenzie, 27 F.3d at 1418-19. For these reasons, Claims K and L are DENIED. Claims M and N Odie claims that newly discovered evidence of his mental impairment and intoxication demonstrates that he could not have formed the mental state required for his murder convictions (Claim M). He rests his claim largely on the declarations of Drs. Riley and Merikangas, his ex-wife, a friend, and on a social history prepared by a social worker. Exs. 29, 30, 32, 38, 48. Odie also bases his claim on the new evidence, allegedly withheld by the state, that the testimony of the prosecution psychologist was unreliable because he was being investigated for fraud at the time. Odie also argues that newly discovered mitigation evidence demonstrates his “actual innocence” of the death penalty (Claim N). He supports this claim with the declarations described above and with other declarations from family members and friends. It is important to note that this is a substantive claim of actual innocence. His claim is therefore reviewed under the standard of Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), rather than the more lenient standard applied to a “procedural” claim of actual innocence offered to obtain federal habeas review of an independent constitutional claim that would otherwise be barred. See Schlup v. Delo, — U.S. -, -, 115 S.Ct. 851, 860-61, 130 L.Ed.2d 808 (1995); Herrera, 506 U.S. at 404, 113 S.Ct. at 862-63. The precise nature of the showing that a petitioner must make to obtain federal habe-as review of a substantive claim of actual innocence is not clear. Herrera suggests, however, that “the threshold showing ... would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417, 113 S.Ct. at 869; see also Swan v. Peterson, 6 F.3d 1373, 1384 (9th Cir.1993) (newly discovered evidence is grounds for federal habeas relief only if would probably lead to acquittal). Odle’s allegations in support of Claims M and N do not rise to the requisite level of persuasiveness. Even assuming their truth, Odle’s allegations in support of this claim do not amount to “a truly persuasive demonstration of actual innocence under any reasonable standard.” Schlup, — U.S. at - n. 32, 115 S.Ct. at 861 n. 32 (internal quotations omitted). Both actual-innocence claims are therefore DENIED. Claims O, P, Q, and S Odie raises four related claims about the conduct and competency of his pre-trial counsel, Patrick Meistrell. After a summary of the relevant facts, this order addresses each claim in turn. 1. Background Odle’s first attorney in the murder case against him was Patrick Meistrell, of the Contra Costa County Public Defender’s Office. Before representing Odie, Meistrell had been on medical leave. He also had been involuntarily committed for a mental disability from mid-1977 to early 1978. Exs. 14-17, 20-24. The public defender’s office was aware of Meistrell’s mental illness in 1977. Ex. 14. At least two attorneys recognized a connection between Meistrell’s breakdown and a complex homicide case he was handling at the time. Ex. 23 at 3-4, 8. In late 1977, Meistrell’s doctor opined that Meistrell would be able “to fulfill any of the obligations and functions of attorney [sic] with the Public Defender’s Office” by July 1978. Ex. 17 at 1. But attorneys in the office had doubts about whether he should be assigned another capital ease. Ex. 23 at 5. Meistrell nonetheless was assigned to represent Odie in 1980 and served as his counsel for approximately one year. During that time, he handled Odle’s preliminary hearing and motions for discovery, suppression of evidence, severance, dismissal and change of venue. CTS 1-1143. From late 1980 until March 1981, Meistrell worked exclusively on Odle’s case. Ex. 23 at 12, 14. During this time, he was on sabbatical from the public defender’s office and also ending a live-in relationship. Ex. 23 at 5, 10, 14. At some point, the public defender’s office recruited William Lowe to assist Meistrell with his woi’k on Odle’s case. In January 1981, Meistrell began to experience manic feelings, similar to those he remembered from his 1977 illness. Ex. 23 at 16. Co-workers and friends noticed the recurrence of similar symptoms in late 1980 or early 1981. Ex. 23 at 6, 9, 10, 12. Meistrell had stopped taking lithium in early 1978, but he started again in March 1981. Ex. 19 at 1; Ex. 23 at 16. Meistrell learned on March 20, 1981, that Odle’s pre-trial writs had been denied. Ex. 23 at 15. He apparently took a street drug around this time and stayed awake for two days. Ex. 19 at 2; Ex. 23 at 14. Around March 23, while he was still representing Odie, Meistrell was placed on medical leave by the public defender’s office because of an unspecified incident. Ex. 18. He was committed at that time. Ex. 23 at 15. In mid-April of 1981, he was diagnosed as suffering from manic depressive disorder, manic phase, and possible amphetamine psychosis. Ex. 19 at 2, 4. Meistrell’s examining doctor concluded at that time that he was unfit to work, near-delusional and almost paranoid. Id. at 4-5. On May 5, Meistrell resigned from the public defender’s office, effective at noon. He nonetheless appeared in court for Odie at 11:00 a.m., introducing into evidence his own personnel file and letter of resignation. Meistrell maintained that he was still Odle’s attorney. 5/5/81 RT 24. His comments in court were disjointed and random. This was Meistrell’s last appearance as Odle’s counsel. At the end of March, the public defender’s office filed an affidavit of conflict, seeking permission from the trial court to withdraw from the case for unspecified reasons. IV CT 1139. The court held a hearing to determine whether the affidavit stated good cause for the office to withdraw. An attorney from that office told the judge that Meistrell was ill and if another attorney were assigned to the case, “it would present serious problems when Mr. Meistrell returns to work.” 3/31/81 RT 3. The public defender’s office also offered in camera statements and a confidential memorandum of points and authorities in support of the affidavit. 4/9/81 RT at 9-10. The court did not find good cause for the affidavit of conflict and denied the office’s request to withdraw. Id. at 17. A month later, the office filed another affidavit seeking to withdraw from the case. This affidavit stated that the office could not represent Odie because it had a conflict of interest. 5/8/81 RT 32. The court accepted this affidavit on its face and permitted the office to withdraw. Id. Later in May 1981, the court appointed William Gagen as Odle’s new counsel. Ga-gen had represented Meistrell approximately four years earlier in proceedings, ultimately unsuccessful, to obtain his release from involuntary commitment. Exs. 20, 22. Gagen was appointed as counsel for Odie in part, as Gagen understood it, because his prior relationship with Meistrell and his geographical distance from the public defender’s office would likely minimize Meistrell’s interference with the case. 5/22/91 RT; Ex. 34 at 2. William Lowe continued to work as co-counsel. 5/22/81 RT 43; V CT 1521. Gagen and Lowe then worked on Odle’s case for two years before trial. After numerous pre-trial motions, jury selection began on June 6,1983. 3ART8. 2. Claim O Odie claims that he was denied his Sixth Amendment right to counsel because Meist-rell was incompetent. Odie argues that Meistrell’s mental illness prevented him from adequately representing Odie during motions to: dismiss the charges and the special cir-eumstances, change venue, sever counts, and suppress evidence. Odie also alleges that Meistrell failed effectively to investigate, prepare and present issues, including: Odle’s competence to stand trial, the diminished capacity and intoxication defenses, and his ability to waive his constitutional rights. A criminal defendant is entitled to the effective assistance of counsel during critical pre-trial proceedings. Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59-60, 77 L.Ed. 158 (1932); United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967); cf. United States v. Martini 31 F.3d 781, 782 (9th Cir.1994) (right applies to “counsel who represents the criminal defendant and helps to prepare his defense”). An attorney who is mentally ill is not per se ineffective. See Smith v. Ylst, 826 F.2d 872, 876 (9th Cir.1987). Rather, a reviewing court must review the attorney’s actual performance. “[I]f a mental illness or defect indeed has some impact on the attorney’s professional judgment it should be manifested in his courtroom behavior and conduct of the trial.” Id. Thus, the Strickland test for ineffective assistance of counsel applies to claims that counsel was incompetent because of mental illness. Id. at 875. Under Strickland, a petitioner must show 1) specific ways in which counsel’s per-' formance fell below an objective standard of reasonableness and 2) a reasonable probability that, but for counsel’s errors, the jury would have reached a different verdict. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064-65, 2068, 80 L.Ed.2d 674 (1984). This court must review counsel’s performance deferentially, applying a strong presumption that it was within the wide range of competence. Id. at 689, 104 S.Ct. at 2065. Odie does not point to any specific inadequacy in, or prejudice from, Meistrell’s handling of Odle’s pre-trial proceedings. From this court’s review of the record, it appears that Meistrell adequately represented Odie at the preliminary hearing and adequately investigated, prepared for and presented pre-trial motions. For example, Meistrell appropriately objected to the testimony of and cross-examined prosecution witnesses and called witnesses for the defense at the preliminary hearing and the suppression hearing. He gathered and presented extensive evidence of media coverage in support of his motion for a change of venue. The record demonstrates that he argued the motions extensively and coherently. As a result, the trial judge dismissed a robbery count and severed a count alleging possession with intent to make an explosive device. IV CT 1042; II RT 330. It is undisputed that Meistrell suffered serious mental breakdowns in 1977 and 1981. But aside from Meistrell’s last appearance as Odle’s counsel, this court has not found any indication that Meistrell’s illness affected his in-court representation of Odie. Odie also argues that Meistrell was ineffective for failing adequately to develop evidence on ballistics and on Odle’s physical and mental condition at the time of the offense. With respect to the ballistics evidence, Odie has not indicated what investigation Meistrell should have done but did not do. Nor has he indicated what helpful evidence could have been found had Meistrell properly investigated. See Hendricks, 70 F.3d at 1042. The bullet that killed police officer Swartz was never found. 19 RT 123. At trial, Ga-gen was able to cross-examine vigorously the criminalist who testified about the source and direction of the bullet, suggesting that it could have come from the weapon of another officer. 19 RT 105-25. Although he later conceded that Odle’s bullet killed Swartz, Gagen used the ballistics testimony to argue that the murder was not premeditated. 23 RT 54, 61, 63-65. Odie has not indicated how he suffered prejudice from Meistrell’s alleged failure to investigate the ballistics evidence; after reviewing the record, this court finds none. Meistrell’s alleged failure to investigate Odle’s physical and mental condition presents a more difficult question. Here, Odie does point to specific prejudice: He argues that Meistrell’s inaction prevented Gagen from presenting at trial mental-health experts who had interviewed Odie. According to his declaration, Gagen believed this testimony would have little value because so much time had lapsed between the offenses and when he retained the experts. Ex. 34 at 5. This court assesses below the reasonableness of Gagen’s conduct and explanation. For purposes of this claim, however, this court notes that Meistrell’s alleged failure to have Odie properly examined near the time of the offense has not prevented mental-health experts who examined Odie some ten yeai's later from forming opinions about his mental state at the time of the offense. Cf. Evans v. Lewis, 855 F.2d 631, 637-38 (9th Cir.1988) (prejudice from counsel’s failure to conduct prompt psychiatric testing where psychiatrist testifying later could not give opinion with a reasonable degree of medical certainty about defendant’s mental state). In declarations before this court, two experts state that Odie could not have formed the requisite intent for first-degree murder, was unable to appreciate the criminality of his conduct or conform it to legal requirements, and suffered extreme mental and emotional disturbance. Exs. 29 at 17; 30 at 11-12. Their declarations undercut Odle’s prime argument of prejudice. Other facts suggest that Meistrell’s conduct with respect to Odle’s mental-health issues was not constitutionally deficient. Although the record is not entirely clear, it appears that Meistrell had Odie undergo an EEG in November 1980 and some neurobe-havioral testing at a UCLA clinic in early 1981. Exs. 7, 23 at 9, 12, 15; 21 RT 154; see also 21 RT 42-43 (defense neurologist testified that 1980 EEG was consistent with the EEG he administered in 1982). It thus appears from the record that Meistrell at least began a reasonable investigation of Odle’s mental and physical health. Gagen replaced Meistrell in 1981 and had two years to prepare for trial. The two years further minimize any prejudice from Meistrell’s alleged errors. For these reasons, this court concludes that Meistrell’s representation was neither constitutionally unreasonable nor prejudicial. Claim 0 is therefore DENIED. 3. Claim P Odie claims that his trial counsel Gagen had an undisclosed conflict of interest because he had previously represented Meist-rell in commitment proceedings. He argues that: 1) Gagen’s duties of loyalty and confidentiality to his former client prevented him from challenging the competency of Meist-rell’s representation of Odie, as Odle’s defense demanded; 2) Gagen’s representation of Meistrell and then Odie thus constituted both a breach of loyalty and an unconstitutional conflict of interest; 3) Gagen’s conflict affected his representation of Odie because Gagen knew of Meistrell’s incompetency yet did not move for dismissal or reconsidei'ation of rulings based on Meistrell’s work; and 4) on the advice of co-counsel William Lowe, Gagen did not redo any of Meistrell’s deficient preparation or investigation. To show a Sixth Amendment violation based on conflict of interest, a petitioner must establish both an actual conflict of interest and an adverse effect on the lawyer’s performance. See Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); Bonin, 59 F.3d at 825. An actual conflict “squarely places the interests of the client in opposition to those of the attorney, and is likely to compromise a reasonable attorney’s ability to comply with his legal and ethical obligation to represent his client with undivided loyalty.” Bonin, 59 F.3d at 827. The mere possibility of a conflict does not violate the Sixth Amendment; a petitioner must show that “counsel actively represented conflicting interests.” Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719. A petitioner must prove an actual conflict by “a factual showing on the record.” Morris v. California, 966 F.2d 448, 455 (9th Cir.1991). The court must then review the record to determine whether the alleged conflict influenced counsel’s conduct. Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir.1994). A petitioner need show only that “some effect on counsel’s handling of particular aspects of the trial was ‘likely.’” United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir.1992) (citing Mannhalt v. Reed, 847 F.2d 576, 583 (9th Cir.1988)). Once that showing is made, a petitioner need not show prejudice. Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1718-19; Sanders, 21 F.3d at 1452. The rule against conflicts of interest serves to protect confidential information obtained during the course of an earlier representation, ensure undivided attorney loyalty and guard against infringement of the right to cross-examination. See Sanders, 21 F.3d at 1452-53; Fitzpatrick v. McCormick, 869 F.2d 1247, 1251 (9th Cir.1989); United States v. Allen, 831 F.2d 1487, 1497 (9th Cir.1987); Trone v. Smith, 621 F.2d 994, 999 (9th Cir.1980). “The evil [in conflict-of-interest situations] ... is in what the advocate finds himself compelled to refrain from doing.” Allen, 831 F.2d at 1497. An actual conflict may exist in a case of successive representation if the two cases are substantially related or if the attorney may be required to reveal any privileged communication or otherwise divide his loyalty. See Maiden v. Bunnell, 35 F.3d 477, 480 (9th Cir.1994); Mannhalt, 847 F.2d at 580. Odle’s claim presents a unique case of successive representation. Gagen’s previous client Meistrell was not a co-defendant, victim, prosecutor or witness in Odle’s case, as in other published opinions addressing conflict-of-interest claims. Rather, Gagen previously represented attorney Meistrell, who handled Odle’s preliminary hearing and some of the pre-trial motions and investigation. After reviewing the record, this court does not doubt that Gagen obtained confidential information about Meistrell’s mental state during the course of his prior representation of Meistrell. See Ex. 34 at 3. Nor does the court doubt that Meistrell’s breakdown made Gagen’s representation of Odie more difficult: Gagen could not talk to Meistrell about the work that he had done or discuss areas of investigation to pursue. See id. at 2-4. These facts do not establish an actual conflict. The proceedings to obtain Meist-rell’s release from involuntary commitment were related only remotely, if at all, to Odle’s capital case. Meistrell’s mental state had little bearing on Odle’s case once Gagen replaced Meistrell as counsel. Gagen did not need to “undermine, criticize, or attack his ... own work product from the previous case” in order to represent Odie. Maiden, 35 F.3d at 481. Had Gagen believed that reconsideration of earlier motions made by Meistrell was warranted, he could have made such a motion without implicating any privileged information about Meistrell. Odle’s allegations amount to, at best, “a remote possibility of a conflict and not an actual conflict.” Bonin, 59 F.3d at 827. Assuming an actual conflict, however, the essential question is whether the conflict “significantly worsen[ed] counsel’s representation of the client before the court or in negotiations with the government.” United States v. Mett, 65 F.3d 1531, 1535 (9th Cir.1995). This court finds no evidence in the record of any adverse effect. See Maiden, 35 F.3d at 482 (petitioner bears burden of indicating specific adverse effect in counsel’s conduct); Morris, 966 F.2d at 455 (bare allegation of conflict of interest does not entitle petitioner to evidentiary hearing); United States v. Mims, 928 F.2d 310, 313 (9th Cir.1991) (no showing on the record that multiple representation had adverse effect). As discussed above, Meistrell represented Odie competently until his last appearance on Odle’s behalf. It is thus unremarkable that Gagen did not move for reconsideration of what Meistrell had done. The record shows that Gagen did, in fact, redo some of Meist-rell’s work. For example, he moved for a change of venue and had an EEG test done on Odie even though Meistrell had already taken these steps. Furthermore, Gagen sought and obtained a two-year continuance to prepare for trial. 5/22/81 RT at 42. There is no indication in the trial record or in Gagen’s declaration that his representation of Odie was restrained in any way because of confidences he learned from Meistrell. Because Odie has not met his burden of showing an actual conflict and a likely adverse effect, Claim P is DENIED. 4. Claim Q Odie claims that the Contra Costa County Public Defender’s Office failed to ensure that he received adequate representation. Odie argues that the office denied him various constitutional rights when it appointed as his counsel Meistrell, whom the office knew or should have known was not mentally competent. He also contends that the office prejudiced Odie by withdrawing as counsel, rather than appointing another of its attorneys, when Meistrell could no longer represent him. The legal basis for this claim is not clear. But Odle’s argument that the office rendered ineffective assistance of counsel under Strickland fails on the prejudice prong: Because Meistrell provided constitutionally adequate assistance, as discussed above, any error the office made in assigning him to Odle’s case did not prejudice Odie. Odie has not alleged how he was prejudiced by the office’s withdrawal, and Gagen and Lowe had two years to prepare for trial. For these reasons, this court DENIES Claim Q. 5. Claim S Odie makes four arguments that the trial court’s actions denied him effective counsel. First, he argues that the trial court knew of MeistreU’s history of mental illness yet failed to hold a hearing to evaluate his competency. “[WJhen there is a question about a defense attorney’s mental competence, a hearing is required when there is substantial evidence that an attorney is not competent to conduct an effective defense.” Smith, 826 F.2d at 877. However, there is no evidence that the trial court was aware of Meistrell’s prior breakdowns or the mental problems he experienced shortly before he was replaced as Odle’s counsel. Cf. id. at 874 (defendant moved for substitute counsel based on counsel’s erratic behavior). As discussed above, Meistrell’s behavior and his conduct of Odle’s defense up to that time did not suggest incompetency. The trial court had no duty to hold a hearing sua sponte on Meistrell’s mental competency. Second, Odie argues that the trial court deprived him of effective counsel by allowing the public defender’s office to withdraw when it had no actual conflict of interest. The Sixth Amendment does not give criminal defendants an absolute right to the appointed counsel of their choice. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988); United States v. Lillie, 989 F.2d 1054, 1055 (9th Cir.1993). A trial court may substitute even retained counsel if it finds a conflict of interest or a possible improper disclosure of confidential communication. See Thomas v. Municipal Court of Antelope Valley Judicial District of California, 878 F.2d 285, 288 n. 3 (9th Cir.1989); United States v. Vargas-Martinez, 569 F.2d 1102, 1104 (9th Cir.1978). Here, the trial court may have acted improperly by not inquiring into the conflict of interest alleged by the public defender’s office. Under the circumstances, however, its substitution of Odle’s counsel did not violate any constitutional right. Third, Odie claims that the trial court denied him his right to be represented by Meistrell, his counsel of choice, even though Odie contends in this petition that Meistrell was incompetent. As noted above, a criminal defendant does not have an unqualified Sixth Amendment right to the appointed counsel of his choice. Wheat, 486 U.S. at 159, 108 S.Ct. at 1697; Lillie, 989 F.2d at 1055. Nor does the Sixth Amendment guarantee a “meaningful attorney-client relationship.” Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983). A trial court may order substitute counsel against a defendant’s wishes for proper reasons. See, e.g., id. (counsel hospitalized for emergency surgery); Vargas- Martinez, 569 F.2d at 1104 (counsel might disclose confidential communications from co-defendant). In light of Meistrell’s resignation from the public defender’s office and his behavior at his last appearance on behalf of Odie, this court has no doubt that the trial court properly ordered substitute counsel. Odle’s constitutional rights were not violated by the substitution. Finally, Odie contends that the trial court knew or should have known of the conflict of interest created by the appointment of Ga-gen. The trial court had a duty under the Sixth Amendment to inquire into Gagen’s appointment if: 1) there was a possibility that Gagen’s former representation of Meist-rell conflicted with his representation of Odie, and 2) the trial court knew or reasonably should have known of the conflict. See Cuyler, 446 U.S. at 347, 100 S.Ct. at 1717-18; Holloway v. Arkansas, 435 U.S. 475, 485, 98 S.Ct. 1173, 1179, 55 L.Ed.2d 426 (1978); United States v. Allen, 831 F.2d 1487, 1494 (9th Cir.1987). It is unclear from the record whether the trial court knew of Gagen’s prior representation of Meistrell. Odie never brought the Gagen-Meistrell relationship to the trial court’s attention. And there is no indication that Gagen ever disclosed it to him. Nor is there any on-the-record discussion of the issue, either in the trial court or in the proceedings before another judge to consider substitution of counsel. In his declaration before this court, Gagen states that he believes he was asked to represent Odie in part because of his prior representation of Meist-rell. Ex. 34 at 2. He does not say whether he discussed his relationship with Meistrell with the trial court. The judge who presided over the substitution-of-counsel proceedings noted that she had approached Gagen about representing Odie, but she did not mention any reason for his appointment. 3/31/81 RT 4. Regardless of whether the trial court knew or should have known that Gagen previously represented Meistrell, this court has concluded above that there was no constitutional conflict. Odie thus cannot show that the trial court violated his constitutional rights by failing to inquire into a possible conflict of interest. For these reasons, Claim S is DENIED. Claim YY Odie claims that trial counsel William Ga-gen provided constitutionally defective and prejudicial representation at both the guilt trial and the penalty trial. In support of his claim, Odie alleges numerous specific deficiencies. After a brief summary of the applicable legal principles, this order discusses these allegations in turn. 1. Legal standard Claims of ineffective assistance of counsel at both phases of a capital trial are governed by the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, trial counsel has rendered constitutionally ineffective assistance if 1) his performance fell below an objective standard of reasonableness and 2) there is a reasonable probability that, but for counsel’s errors, the jury would have reached a different verdict. Id. at 688, 694, 104 S.Ct. at 2064-65, 2068; Hendricks, 70 F.3d at 1036. In reviewing counsel’s performance, this court must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. It must also gauge counsel’s conduct in light of all the circumstances and from counsel’s perspective at the time of trial. Id. at 688-89, 104 S.Ct. at 2064-65. Trial counsel will be found ineffective, however, where he “neither conducted a reasonable investigation nor demonstrated a strategic reason for failing to do so.” Sanders, 21 F.3d at 1456. This court need not analyze the reasonableness of counsel’s performance if it concludes that petitioner cannot show prejudice. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069-70; Williams, 52 F.3d at 1470. Similarly, if it is clear that counsel’s conduct was reasonable, this court need not determine whether any errors were prejudicial. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069-70; Hendricks, 70 F.3d at 1039. 2. Guilt trial Odie claims that trial counsel provided unconstitutionally deficient and prejudicial representation by inadequately investigating and presenting evidence of his mental state at the time of the offense. After reviewing the trial record and Odle’s exhibits, this court is convinced that Gagen’s conduct was not unreasonable. It is clear that Gagen obtained, reviewed and introduced the necessary mental-health records. See 21 RT 98, 109; CT 1543-45; Exs. 1, 2. He had an EEG test done. 21 RT 26-27. He decided that a mental-health examination would not be of much value because considerable time had passed since the offense. Ex. 34. Based on this investigation and strategic decision, Gagen reasonably chose a diminished-capacity defense based on Odle’s brain injury. Gagen pursued this defense consistently throughout the trial. He presented extensive guilt-trial testimony — lay and expert— about Odle’s brain injury and subsequent mental state from: 1) Dr. Blum, the neurosurgeon who operated on Odie after his 1973 accident; 2) Dr. Holtz, who reviewed Odle’s EEGs; 3) Dr. Thompson, a psychiatrist; and 4) Odle’s wife Glenda. 20 RT 15-56, 82-130; 21 RT 12-161; Ex. 38. Building on then-testimony, Gagen argued that the jury should consider Odle’s post-accident history to determine his capacity to form the necessary intent. See, e.g., 23 RT 36, 44. This court also notes that Odle’s mental deficiency was not subtle; it was not the kind of mental illness that requires a battery of psychologists and psychiatrists to identify and explain. Cf. Bonin, 59 F.3d at 832-33 (conflicting and speculative expert testimony about psychiatric diagnosis and effects). Odie had had a lobectomy. His brain injury was patent, and Gagen reasonably chose to focus on the fact of the injury and the effects it had on Odle’s behavior and mental ability. As he said in his opening statement, I will tell you right now that this is not a Twinkie defense. I’m not going to bring in any experts talking about any change in Jim Odle’s eating habits or anything like that. What we have in this case, simply stated, is a man who had part of his brain removed in a surgery in 1973. Simply stated, that’s what the evidence is. 20 RT 9. Reviewing trial counsel’s performance deferentially and from his perspective at the time, this court cannot conclude that his handling of the guilt-trial mental-state evidence was constitutionally deficient. Odie also argues that Gagen was ineffective for failing to investigate and present to the trial court evidence that Odie was incompetent to stand trial. As outlined above, Gagen conducted a substantial investigation into Odle’s mental state. Gagen states in his declaration that Odie was cooperative; he apparently was aware of what was going on, although preoccupied and afraid of losing control. Ex. 34. Further, this court has concluded that Odie was not actually incompetent to stand trial. For these reasons, the court concludes that Odie has not established that Gagen’s representation on the competency issue was either unconstitutionally deficient or prejudicial. Whether the evidence of Odle’s mental condition is given the label of “incompeteney to stand trial,” “diminished capacity defense,” or “mitigation on penalty,” the fact remains that Odle’s mental condition was focused on by defense counsel and several experts. Odle’s lobectomy was patent and was the subject of evidence at trial. The jury rejected it. This court does not doubt that 15 years later, looking through a “re-trospectoscope,” some other attorney or psychiatrist might do it better. But that, of course, is not the standard. See Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66. The attorneys did identify Odle’s mental problem, had examinations conducted, and presented evidence on Odle’s mental state. This court cannot conclude that something more was required by the United States Constitution. Odie argues that his trial counsel did not adequately prepare, support and present the motions for change of venue. He contends specifically that counsel were ineffective for failing to survey members of the community to document their exposure to prejudicial publicity. According to Odie, the prosecution exploited this failure in its opposition to the motions. This court concludes that Odie has not shown prejudice from counsel’s preparation or presentation of the motions for change of venue. As noted in this court’s prior order, Odie was not denied a fair trial when the state courts rejected the motions. See Odie, 884 F.Supp. at 1421-22. Furthermore, it is unlikely that a community survey would have affected the state courts’ decision. The trial court questioned venire members individually about their awareness of the case. See id. at 1421. Having heard the responses of potential jury members on their actual exposure to publicity, the trial court would not have given much weight to a community survey. In denying Odle’s writ of mandate, the California Supreme Court also identified actual demonstrations of juror prejudice as revealed during voir dire, rather than community surveys, as critical to a change-of-venue motion. Odle v. Superior Court, 32 Cal.3d 932, 945-56, 187 Cal.Rptr. 455, 654 P.2d 225 (1982). For these reasons, it is not reasonably probable that the motions would have succeeded had counsel conducted a community survey. argues have filed a motion to dismiss based on his knowledge that Meistrell had a mental illness that would have affected his preparation of the case. He also contends that Gagen should have redone the pre-trial investigation and preparation that Meistrell had done. This court concludes that Gagen’s conduct upon taking the case from Meistrell was not unreasonable or constitutionally deficient. Odie does not specify the legal standard that would govern a motion to dismiss under these circumstances. Whatever the standard, it seems clear that the motion would not have been granted. Substitutions of counsel occur routinely, and the remedy is not dismissal but continuance. Here, Gagen appropriately asked for and was granted a continuance; he had two years from the time he was appointed to the time of trial. 5/22/81 RT at 42. Because it is unlikely that a motion to dismiss would have succeeded, this court finds no prejudice. It is true that Gagen recognized serious problems with Meistrell’s work: Meistrell’s files were disorganized, and he had not settled on a coherent defense or developed key ballistic and mental health evidence. Ex. 34 at 5. As noted above, Gagen did in fact redo some of MeistreU’s motions and investigation. And as this court has found, Meistrell provided constitutionally competent representation until the very end of his work on Odle’s case. Also, Gagen took the eminently reasonable step of insisting on adequate time to prepare the case. For these reasons, Gagen did not render constitutionally defective assistance by not redoing all of Meistrell’s work. Odie contends that Gagen failed adequately to investigate and present a voluntary intoxication defense. Gagen presented, through defense witnesses and through cross-examination of prosecution witnesses, substantial evidence of Odle’s drug and alcohol use in general and at the time of the Aguilar offense. See, e.g., 15 RT 12-13, 113; 16 RT 12-13; 20 RT 36; 20 RT 102; 21 RT 5-7. Defense experts Blum, Holtz and Thompson also testified about the harmful effects of alcohol on people with brain damage like Odle’s. See 20 RT 56; 21 RT 46-47, 158; see also 22 RT 66 (on cross-examination, even prosecution expert Berg agreed that people with brain injury should limit alcohol use). After reviewing the record, this court concludes that Odie cannot show prejudice from Gagen’s failure to present additional evidence of intoxication or drug use. This court also finds unpersuasive Odle’s claim that Gagen was ineffective for failing to order and present independent tests showing Odle’s drug and alcohol levels at the time of the offenses. Odie has not alleged what such tests might have found or argued how they would have affected the outcome, given the other evidence of his drug and alcohol use presented at trial. See Hendricks, 70 F.3d at 1042. This court thus concludes that Odie has not shown prejudice from Gagen’s allegedly deficient performance.. Odie next argues that Gagen was ineffective for presenting the testimony of Drs. Blum and Thompson, who had supervised Odle’s post-accident medical and psychiatric care. He contends that their testimony was biased because the doctors had an interest in portraying them treatment of Odie as adequate. Gagen’s decision to present the testimony of these doctors was clearly reasonable. Dr. Blum, in particular, testified persuasively about Odle’s post-accident mental impairment. 20 RT 27-56. Further, Odie has not met his burden of showing prejudice from the doctors’ testimony. Odie contends that Gagen failed to impeach Bryan Odie, his accomplice in the Aguilar offense. As discussed below, Bryan testified extensively about his plea agreement, and Gagen cross-examined him in detail. 15 RT 136-201; 16 RT 1-43. Odie does not support his claim with any specific examples of inadequacy in, or prejudice from, counsel’s performance. This court therefore rejects this aspect of his ineffective-assistance claim. Odie argues that Gagen was ineffective for failing to object to or strike the admission of certain evidence. This evidence includes: a polygraph examination of Terry Whitworth, who had fought with murder victim Aguilar on the evening of her death; Aguilar’s and others’ fear of Odie; Bryan’s lack of convictions; a pathologist’s opinion on ballistics; testimony about Odle’s incriminating statement to inmate and alleged police agent Scudder; and a sheriffs testimony about Odle’s statement that he deserved the death penalty. These were evidentiary issues, and objections may not have been sustained. After reviewing the record, this court concludes that Odie cannot show any prejudice from these alleged failures to object, even if erroneous. Odie contends that Gagen should have objected to various instances of prosecutorial misconduct. This court rejects the substance of these allegations of prosecutorial misconduct below (Claim W), and in its prior order; see Odle, 884 F.Supp. at 1431-32 (Claims WW and XX). For the reasons discussed there, the court concludes that Odie was not prejudiced by Gagen’s failure to object to the conduct of the prosecution. Odie argues next that Gagen was ineffective for failing adequately to investigate, question and strike a juror who disclosed to the court that she was acquainted with a prosecution witness. The related substantive claim of juror misconduct and the relevant facts are discussed below (Claim HH). Gagen conducted a reasonable voir dire of the juror in this situation. See 13 RT 2-3. Nothing in the juror’s responses would have caused a reasonable attorney to doubt that she could be an unbiased juror. Furthermore, Odie has not shown or even alleged prejudice; he offers no evidence that she was, in fact, biased for the prosecution or against Odie. Odie also contends that Gagen unreasonably stipulated or conceded that: 1) the police had probable cause to arrest him; 2) Swartz was acting in duty as an officer at the time of his death; and 3) there was no reasonable doubt that Odle’s bullet, and not the bullet from another officer, killed Swartz. Odie has offered no evidence that easts doubt on the prosecutor’s ability to show that the police had probable cause to arrest him or that Swartz was acting in his duty as a police officer when he was shot. He thus has not established prejudice. Odle’s argument that Gagen should not have conceded that Odle’s bullet killed Swartz carries more weight. As Gagen initially argued, there are serious questions about the origin of the bullet, which was never found. 19 RT 47, 66-67, 123. Based on the testimony of prosecution witnesses, Gagen suggested that the bullet could have ricocheted and that it might not have come from Odle’s weapon. 23 RT 54. He then told the jury, however, “[T]here is no other reasonable explanation but that the projectile that went through Officer Swartz came from the weapon of Jim Odie.” 23 RT 54-55. Because the evidence could have supported a contrary argument, Gagen’s concession, standing alone, might have been unreasonable. On the other hand, it appears from the record that Gagen used the concession not only to gain credibility with the jury but also to make an argument that was stronger and more consistent with his overall strategy. Specifically, he used the shooting testimony to argue that Odie shot without premeditation. 23 RT 55-66. Where it appears that counsel’s alleged error was the result of a “difficult but thoughtful tactical decision, [this court] must presume that counsel’s conduct was within the range of competency.” Harris v. Pulley, 885 F.2d 1354, 1368 (9th Cir.1988). It is clear from the record here that Gagen recognized that the evidence was inconclusive but deliberately chose to concede that the fatal bullet came from Odle’s gun. This strategic decision was not clearly unreasonable under the circumstances. Gagen’s conduct thus was not constitutionally deficient. Odie also argues that Gagen was ineffective because he did not request instructions on involuntary manslaughter and the use of predisposition evidence. This court held in a previous order that the failure to give a predisposition instruction in this case did not violate due process. See Odle, 884 F.Supp. at 1415-16. For the reasons discussed therein, Gagen’s failure to seek this instruction did not prejudice Odie. Odle’s argument about the involuntary manslaughter instruction is unpersuasive for different reasons. Gagen explained to the trial court why he was not requesting instructions on involuntary manslaughter and involuntary manslaughter due to diminished capacity. He said, Your Honor, I think I should say for purposes of the record that after carefully considering the state of the evidence, I think the numbered instructions that I am asking not be given with reference to involuntary manslaughter and heat of passion would do nothing but confuse the jury and would have absolutely no advantage to the defendant whatsoever, and it is with that in mind that I have so requested to the Court that they not be given. 22 RT 136-37 (emphasis added). It is clear from the record that Ga-gen made a strategic decision not to ask for the instructions. His explanation to the trial court suggests that Gagen recognized that the evidence would have supported an involuntary manslaughter instruction. It thus appears that he made a tactical choice based on a proper understanding of the law and the facts. Cf. Siripongs v. Calderon, 35 F.3d 1308, 1314 (9th Cir.1994) (record contains no evidence from which district court can infer that trial counsel made informed, tactical decision). Such choices are “virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Odie has not offered this court any reason to doubt that Gagen made a reasonable tactical decision under the circumstances. Odle’s final contention of ineffective assistance of counsel at the guilt trial concerns Gagen’s advice to Odie not to testify. Gagen initially told the trial court that he wanted Odie to testify about only one of the two murders. He stated that he could not think of a way to allow Odie to testify about the Swartz offense but shield him from cross-examination about the Aguilar offense. Thus, Gagen ultimately advised Odie not to testify at all. Odie does not allege prejudice from Ga-gen’s failure to pursue tactics that would have allowed him to testify about only one of the murders. He presents no declarations or evidence about what he would have said had he testified. Odie does not point to any issues on which his testimony would have been helpful. Odie thus has not met his burden with respect to prejudice. See Hendricks, 70 F.3d at 1042 (petitioner cannot show prejudice without indicating what favorable evidence would have been presented). 3. Penalty trial In its 1990 order and above, this court has addressed Odle’s primary allegation of ineffective assistance of counsel at the penalty trial. See supra at 1375-76; Odle, 754 F.Supp. at 772-74. It discusses next his remaining penalty-trial ineffective-assistance claims. Odie argues that Gagen was ineffective because he did not adequately investigate or move to suppress Odle’s prior convictions that were offered in aggravation at the penalty trial. Odie says that the convictions were subject to suppression because he was not competent to plead guilty at the time. This court has rejected Odle’s substantive claims of incompetency (Claims K and L, above). As discussed above, neither the trial court, nor counsel, nor anyone involved in the earlier proceedings against Odie questioned his competency. In these circumstances, it is not reasonably likely that the trial court would have suppressed the priors based on Odle’s incompeteney to plead guilty. This court thus concludes that Odie has not shown prejudice from Gagen’s failure to challen