Full opinion text
AMENDED MEMORANDUM OPINION AND ORDER BILBY, District Judge. Joe Lambright, under sentence of death, seeks habeas corpus relief. This Court has jurisdiction pursuant to 22 U.S.C. § 2241 and 22 U.S.C. § 2254, and herein denies the petition. FACTUAL BACKGROUND In early 1980, Joseph Leonard Lambright, Robert Douglas Smith and Kathy Foreman began a cross country driving trip from Texas, to Florida, and then on to California, stopping in Arizona. Foreman was Lam-bright’s lover who frequently engaged in sexual intercourse with Lambright in Smith’s presence. The trio stopped- outside Tucson and camped for the night. Smith became angry when he observed Lambright and Foreman once again having sex. He complained that Lambright, unlike Smith, had all the sex he wanted and that it was not easy to find someone. The following day, the three drove into Tucson and went to a restaurant. Smith again spoke about wanting a woman, and Lambright spoke about wanting to “kill somebody just to see if he could do it.” Lambright then told Foreman that they were going to go find someone for Smith. After driving around town for quite a while, the trio saw a young woman hitchhiking near the University of Arizona campus. Twenty-nine year old Sandy Kay Owen explained to them that she was trying to get to the food stamp office. They drove Owen to the food stamp office and parked behind the building. Lambright jumped into the back seat with Owen and told her to “shut up and be quiet and she wouldn’t get hurt.” Smith moved to the driver seat and headed toward the freeway. At some point during the drive toward California, Lambright began driving, with Smith in the back seat with Owen. Smith had sex with Owen in the back seat, on the freeway, heading northwest. Owen asked if they would let her go. The group later left the freeway and proceeded on a dirt road in a mountainous area of Pinal County. They left the car at the end of the dirt road and traveled on foot to a level area on a mountain. At the level area, Lambright and Foreman again had intercourse and Smith again had sex with Sandy Owen. Smith began choking Sandy and she collapsed to the ground. Lambright said that she had to be killed so that she could not report their crimes. He took Foreman’s knife and began stabbing Ms. Owen in the torso and chest, twisting the knife around inside her. Smith and Foreman each held one of her arms, as the victim tried to resist. Smith attempted to break her neck by twisting her head, but was unsuccessful. Lam-bright, and possibly Foreman, then began cutting into Ms. Owen’s neck. Sandy Owen was still alive and was trying to lift herself up on one arm. At that point, Lambright threw a large rock at Sandy’s head, yelling, “Die, bitch.” The trio took some jewelry from the victim’s body then covered it with rocks, and headed toward San Diego. In the car they played a song on tape entitled “We are the Champions.” In San Diego, they pawned Owen’s ring before driving on to Anaheim, Las Vegas and finally back to Texas. About a year later, law enforcement received a tip about the crime and the three were separately questioned. Each made statements to the police. Foreman was granted immunity from prosecution for her testimony against Lambright and Smith, who were returned to Arizona for prosecution. PROCEDURAL BACKGROUND Petitioner Joe Leonard Lambright, was convicted by a jury of murder in the first degree, kidnapping and sexual assault. Although Pima County Superior Court Judge Michael V. Brown severed the eases of Lam-bright and Smith, there was a single trial with two juries. Evidence that was relevant to both was presented to both juries and evidence admissible against only one, was presented before only that jury. The court sentenced Lambright to death for the murder and to twenty-one years imprisonment to run consecutively on each of the remaining convictions. Lambright appealed to the Arizona Supreme Court, which affirmed the conviction and sentence in Arizona v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983). The United States denied certiorari in Lambright v. Arizona, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 203 (1984). Pursuant to Ariz.R.Crim.P. 32, the Petitioner then sought post-conviction relief in the trial court. Finding the claims to be either precluded or not colorable, the trial court denied relief. Following denial of his request for rehearing in the trial court, the Petitioner then sought review in the Arizona Supreme Court. That court denied the petition for review on July 9,1986 and set execution for April 29, 1987. Mr. Lambright filed his original habeas corpus petition in this Court on April 14, 1987 and this Court promptly stayed the execution. The State of Arizona moved to dismiss the petition on the grounds of procedural default and the presence of unexhausted claims. This Court granted the Respondents’ motion and dismissed the mixed petition without prejudice, but retained jurisdiction and continued the stay of execution. After nearly two years of apparent inactivity, Lambright was appointed new counsel, who filed another Rule 32 petition in state court. The trial court denied the Petitioner’s amended Rule 32 petition, and the Supreme Court denied review without comment. The Petitioner then sought authorization from this Court for expenditure of funds. He wanted to employ various experts and investigators in order to develop the claim that trial counsel’s failure to present evidence of the Petitioner’s mental health status was ineffective assistance of counsel. This Court considered Lambright’s request three times, and three times denied it, concluding that Lambright had not established cause and prejudice to overcome procedural default. Lambright filed his Amended Petition for Writ of Habeas Corpus on February 23, 1995. He also subsequently filed another Rule 32 notice in state court, for the first time raising the issue of ineffective assistance of counsel on direct appeal. The trial court refused to allow such a claim, finding it barred by failure to raise it in the two previous post-conviction relief proceedings. The Respondents then filed an answer to Lam-bright’s amended habeas petition on August 22, 1995, and Lambright filed his reply on November 29,1995. The Court denied, without prejudice, Lambright’s motion for evidentiary hearing and oral argument on February 8, 1996. On April 22, 1996, this Court received a certified copy of the state record. Following months of effort by this Court to obtain a complete state court record, Lam-bright’s petition for relief is appropriate for federal habeas review. DISCUSSION The Petitioner raises thirty grounds for relief in the Amended Petition, arranged under the headings of (1) ineffective assistance of counsel claims; (2) trial claims; and (3) sentencing claims. The Court considers the claims in turn, and for clarity and for convenience to the reader, organizes the issues in the same manner as the Amended Petition. I. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS (Claims 1-4) As mentioned above, the Petitioner previously moved this Court for authorization of funds for experts and investigators in order to develop an ineffective assistance of trial counsel claim. The Petitioner’s theory is that trial counsel’s failure to present evidence of the Petitioner's mental health status was ineffective assistance of counsel. The Petitioner posited that at the time of trial evidence existed, but was not presented, that would have demonstrated significant mental health problems. This evidence allegedly includes, post traumatic stress syndrome episodes as a result of combat service in Vietnam, two suicide attempts, and an emotional breakdown after his father’s death and during the decline of his marriage. Despite the Court’s previous rulings finding the claims procedurally defaulted, the Petitioner continues to press his assertions of ineffective assistance of counsel. Specifically, Lambright complains that trial counsel failed to investigate, develop and present mitigation evidence with respect to his mental health, family background and military service. Counsel did not attend and did not prepare Lambright for the presentence interviews or psychological evaluation. Counsel did not consult with Lambright regarding sentencing procedures and did not employ a presentence investigator or mental health expert for use at sentencing. He did not advocate on Lambright’s behalf at the sentencing and did not request a pretrial competency hearing. He did not make an opening statement and did not consider the possible effect of sustained drug use on the case. Trial counsel also failed to request a jury instruction on lesser included offenses to first degree murder. The Court concludes, however, that these claims cannot be considered on the merits. A. The Doctrine of Procedural Default and the Exhaustion Requirement A state court prisoner’s federal habeas petition must be dismissed if he has not exhausted remedies available in the state. 28 U.S.C. § 2254(b); Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). See also Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (holding that federal claims must first be fairly presented to state courts before being presented to federal courts); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.1985) (stating that exhaustion requires fair presentation the state’s highest court), cert. denied, 478 U.S. 1021, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986). This exhaustion requirement is based on notions of comity and respect for the state courts’ role in vindicating the federal rights of state prisoners. Rose, 455 U.S. at 516-18, 102 S.Ct. at 1202-03; Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir.1993). A federal court defers ruling on unexhausted claims that are otherwise properly before it, so that the state court has the first-opportunity to correct claimed violations. Id. Like the habeas petitioner who does not exhaust his state court remedies, a petitioner who fails “to meet the state’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991). See also Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989) (determining that a claim has not been fairly presented to the state court to satisfy the exhaustion requirement when it is presented in a procedurally inappropriate manner that renders consideration of the merits unlikely). This is procedural default, which is simply an application of the doctrine of adequate and independent state grounds. English v. United States, 42 F.3d 473, 477 (9th Cir.1994) (citing Coleman, 501 U.S. at 729-31, 111 S.Ct. at 2553-55). The doctrine of adequate and independent state grounds dictates that a federal court will not review a state court decision that rests on a state law ground, either substantive or procedural, that is independent of federal law and is adequate to sustain the decision. Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935). Where a state court declines to consider a state prisoner’s federal claims because he failed to meet a state procedural requirement, this doctrine bars federal habeas review. This is because the state court decision rests on independent, adequate state procedural grounds. Coleman, 501 U.S. at 729-30, 111 S.Ct. at 2553-54 (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Ulster County Court v. Allen, 442 U.S. 140, 148, 99 S.Ct. 2213, 2219, 60 L.Ed.2d 777 (1979); Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)). It is this doctrine that prevents a state prisoner from defaulting his federal claims in state court and avoiding the exhaustion requirement. Coleman, 501 U.S. at 732, 111 S.Ct. at 2555. A state court judgment rests on adequate and independent state law grounds where it does not fairly appear to rest primarily on federal law or is not interwoven with federal law. Where there is a clear and express statement that the state court is relying on a state procedural default as the basis for decision, independent of federal law, the state’s judgment is based on adequate, independent state law grounds. See Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201 (1983) (requiring that state law ground be clear from the face of the opinion); Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) (applying Long to procedural default grounds); Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043-44, 103 L.Ed.2d 308 (applying Caldwell and Long in a habeas case). In this case, the state procedural rule at issue is Ariz.R.Crim.P. 32.2(a)(3). That rule precludes state collateral review of claims waived at trial, on appeal, or in any previous collateral proceedings. Lambright first raised the federal claim of ineffective assistance of trial counsel in state court in his initial Rule 32 post-conviction relief petition. As explained in this Court’s previous rulings (Orders of June 20, 1995; Mar. 8, 1995; July 11, 1994), state law prevailing at the time of Lambright’s conviction, sentence and appeal, required that ineffective assistance claims be raised on direct appeal. The Arizona appellate courts, at that time, either decided ineffectiveness claims based on the record before them, or returned the claims to the trial court for a hearing. See e.g., Arizona v. Watson, 114 Ariz. 1, 559 P.2d 121 (1976) (resolving on direct appeal those submitted ineffective assistance of counsel claims that did not raise matters outside the record and directing the trial court to consider submitted colorable claims raising matters outside the record), cert. denied, 430 U.S. 986, 97 S.Ct. 1687, 52 L.Ed.2d 382 (1977); Arizona v. Zuck, 134 Ariz. 509, 515, 658 P.2d 162, 168 (1982) (en banc) (noting that “[i]n the past, when the issue of competency of trial counsel has been raised, we have always resolved the matter with whatever was before us in the record,” and concluding that in some cases, “it would be appropriate to remand the case for a hearing on the question”). While it is true that trial competency claims were at times remanded to the trial court for hearing, there is no support for the contention that those claims need not have been first presented to the appellate court on direct appeal. During the relevant time frame, direct appeal was considered “the preferred method for presenting claims of reversible error.” Arizona v. Carriger, 143 Ariz. 142, 144, 692 P.2d 991, 994, 996 (1984) (en banc) (finding the death sentenced defendant’s failure to raise ineffective assistance of counsel claim on direct appeal constituted waiver of the right to claim error), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985). “Important policy considerations require that all claims be raised in the appeal.” Id. 143 Ariz. at 146, 692 P.2d at 995. The applicable procedural rule at the time provided that “[a] petitioner will not be given relief under this rule based upon any ground ... [k]nowingly, voluntarily and intelligently not raised at trial, on appeal, or in any previous collateral proceeding.” Ariz. R.Crim.P. 32.2(a). That rule made no exception for ineffectiveness claims. The trial court judge relied on that procedural rule in finding Lambright’s ineffectiveness claims barred when considering the first Rule 32 petition in 1985. Judge Brown stated: [T]his case was appealed on behalf of Mr. Lambright by an experienced criminal appellate attorney, not the trial attorney, who examined the entire record and transcript and failed to raise the issue on appeal, a knowing, voluntary and intelligent waiver, therefore the defendant is precluded under Rule 32.2(a)(3), and the court finds that there is in fact no colorable claim of ineffectiveness. (Pima County Superior Court Minute Entry of Apr. 17, 1985 at 8). The Judge found Lambright’s ineffectiveness claim precluded and found it not colorable. While he did apparently speak to the merits, Judge Brown’s explicit determination that the claim was precluded is an alternative holding that maintains the procedural bar. Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992); Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Carriger v. Lewis, 971 F.2d 329 (9th Cir. 1992), cert. denied, 507 U.S. 992, 113 S.Ct. 1600, 123 L.Ed.2d 163 (1993); Thomas v. Lewis, 945 F.2d 1119, 1122-23 (9th Cir.1991). It was not until 1989 that the Arizona Supreme Court first intimated that ineffectiveness claims would be more properly raised via a Rule 32 proceeding than on direct appeal. In Arizona v. Valdez, 160 Ariz. 9, 770 P.2d 313 (1989) (en banc), the court stated: As a general matter, we recommend that when a defendant wishes to raise the question of ineffective assistance during the pendency of his appeal, he should file the proper petition under Rule 32, Ariz. R.Crim.P., 17 A.R.S., in the trial court and seek an order from the appellate court suspending the appeal. The trial court should then hold an evidentiary hearing and make its ruling. Afterward, a defendant should seek to consolidate the post-conviction proceedings with the direct appeal. See Rule 31.4, Ariz.R.Crim.P., 17 A.R.S. Valdez, 160 Ariz. at 15, 770 P.2d at 319. The court continued to consider ineffectiveness claims on direct appeal. Shortly after Valdez, the court reached the merits of a death penalty defendant’s claims of incompetent counsel in Arizona v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989) (en banc), aff’d by 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). The procedural practice of ineffectiveness claims on direct appeal continued even into 1989. Later that year, the state supreme court refused to consider an ineffectiveness claim on direct appeal, ruling that “[o]nly, where we may clearly determine from the record that the ineffective assistance is meritless, will we elect to consider the issue on direct appeal.” Arizona v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) (en banc) (reaching the merits and denying the claim). See also Arizona v. Marlow, 163 Ariz. 65, 69-70, 786 P.2d 395, 399-400 (1989) (en banc) (citing Carver and determining that ineffectiveness claims should be raised by counsel other than trial counsel). At this point, it became clear that a defendant may pursue the federal ineffectiveness claim in the trial court, while his direct appeal is stayed. Until this point, the defendant was required to raise the claim on appeal and await the appellate court’s determination of whether a hearing was required to further develop the record. The Petitioner did not do so. He has, therefore procedurally defaulted his claims of ineffective assistance of counsel. Lambright presents several arguments in his effort to avoid procedural default. He argues first that procedural default is inapplicable because the state’s high court did rule on his ineffectiveness claims. He then argues that, for a variety of reasons, the trial court’s finding of procedural bar does not rest on adequate, independent state law grounds. These arguments are unavailing. Lambright asserts that there has been no default because the Arizona Supreme Court conducted review for fundamental error on direct appeal. This fundamental error review, the Petitioner states, includes review of the proficiency of counsel, as the right to counsel is a fundamental right. See Arizona v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992) (en banc), cert. denied, 506 U.S. 872, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992); Arizona v. Sorrell, 132 Ariz. 328, 645 P.2d 1242 (1982); Arizona v. Smith, 136 Ariz. 273, 279, 665 P.2d 995, 1001 (1983) (en banc) (holding that ineffective assistance of counsel at sentencing is within fundamental error review). Therefore, the Petitioner concludes that he has fairly presented his ineffectiveness claims to the state’s highest court, who reviewed its merits and implicitly denied the claims. Thus, there has been no default and the claims are not precluded from federal habeas review. The Petitioner quotes Judge Brown’s minute entry that states: [T]he issue existed factually prior to appeal; the Arizona Supreme Court looked at the entire sentencing process exhaustively, testing it for error of constitutional dimension and found none. There is therefore the suggestion and strong inference that the claim is precluded under Rule 32.2(a)(2). (Pima County Superior Court Minute Entry of Mar. 4, 1986 at 4). This, according to Lambright, indicates that Judge Brown found the claims precluded under 32.2(a)(2)— not 32.2(a)(3). Rule 32.2(a)(2) precludes relief for claims that have already been adjudicated. Lambright urges that if Judge Brown’s denial rested on the supreme court’s consideration of the ineffective claims on direct appeal, then this shows there is no federal bar to a review on the merits. Assuming the Petitioner is correct that a state court finding of preclusion under Rule 32.2(a)(2) does not bar federal relief, his position is not supported by the stated rationale of Judge Brown’s ruling. Upon consideration of Lambright’s motion for rehearing on the April 17, 1985 denial of his Rule 32 petition, Judge Brown did not base his finding of preclusion solely on Rule 32.2(a)(2). While Judge Brown acknowledged a “strong inference” that the claim was precluded under 32.2(a)(2), he explicitly made a finding “that since it clearly could have been raised on direct appeal, that it has been knowingly, voluntarily and intelligently waived by failure to raise it, and is therefore precluded pursuant to Rule 32.2(a)(c) [presumably intended as 32.(a)(3) ] and (e).” (Pima County Superior Court Minute Entry of Mar. 4, 1986, at 4-5). Moreover, this argument was recently considered and rejected by the Ninth Circuit Court of Appeals. “Under Arizona law, fundamental error review does not prevent subsequent procedural preclusion.” MartinezVillareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir.1996) (citing Arizona v. Lopez, 170 Ariz. 112, 117, 822 P.2d 465, 470 (Ct.App.1991)). This Court, as did the Ninth Circuit, finds no merit in this position. Next, the Petitioner contends that Rule 32.2 is not an adequate state ground to preclude habeas review because his ineffectiveness claims were not known at the time of his direct appeal. Lambright explains that 32.2(b) provided for an exception to rule 32.2(a) preclusion where there “has been a significant change in the law ... and there are sufficient reasons to allow retroactive application of the changed legal standard.”. Ariz.R.Crim.P. 32.1(g). He concludes that Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) constitutes a significant change in the law within the meaning of 32.1(g), and so his ineffective claims are exempted from preclusion. The Petitioner points out that prior to Strickland, an Arizona defendant complaining of deficient counsel was required to show that his trial counsel’s conduct reduced the proceedings to a farce, sham or mockery of justice. See Arizona v. Garcia, 133 Ariz. 522, 652 P.2d 1045 (1982) (en banc). In Arizona v. Nash, 143 Ariz. 392, 694 P.2d 222 (en banc), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985), the Arizona Supreme Court recognized that Strickland altered the prior Arizona test articulated in Arizona v. Watson, 134 Ariz. 1, 4-5, 653 P.2d 351, 354-55 (1982) and it modified Watson accordingly. See Nash, 143 Ariz. at 397, 694 P.2d at 227 (modifying first prong of two prong test for minimally competent representation to require counsel’s actions to have fallen below objective standards of reasonable representation as measured by prevailing professional norms). Notwithstanding the Arizona Supreme Court’s recognition that Strickland produced a modified test for minimally competent representation, the court determined the pre- and post-Strickland standards were similar. Nash, 143 Ariz. at 397, 694 P.2d at 227. The court was directly confronted with the issue of retroactivity of Strickland standards in Arizona v. Gerlaugh, 144 Ariz. 449, 698 P.2d 694 (1985) (en bane), and declined to apply Strickland standards retroactively to a post-conviction case. The court found no case where any court had ever done so, but did discover that many courts had applied effectiveness standards only prospectively. Gerlaugh, 144 Ariz. at 456, 698 P.2d at 701 (citing prospective application cases). It stated that the difference between the standards in Arizona before and after Strickland “is scarcely outcome determinative,” and found no compelling reason to apply the modified standard retroactively. Id. In sum, the Gerlaugh court made clear that in Arizona, the Nash modification in light of Strickland is to be applied prospectively only. That is, the new standard applies only to cases tried or pending appeal after January 9, 1985, the date Nash was decided. Id. Lambright’s trial and appeal were completed well before January, 1985. Therefore, there has been - no significant change in the law and there are no sufficient reasons to allow retroactive application of the changed legal standard under Ariz.R.CrimJP. 32.1(g), 32.2(b). Similarly, Lambright also posits that his waiver of his ineffectiveness claims could not have been knowing and voluntary under Rule 32.2(a)(3) because Strickland had not been decided at the time of his direct appeal. A claim is not procedurally defaulted from post-conviction review if the claim not raised on appeal was a constitutional issue unknown at the time of the appeal. Myers v. Washington, 646 F.2d 355, 359-60 (9th Cir.1981), judgment vacated on other grounds, 456 U.S. 921, 102 S.Ct. 1964, 72 L.Ed.2d 436 (1982). Appellate counsel cannot be expected to “anticipate how constitutional law would evolve over the next twenty years,” and he need not fear omitting “what appears at the time to be a futile constitutional argument.” Id. at 360. That is clearly not the situation in this instance. As noted above, the pre- and post-Strickland standards were similar. Myers addressed the situation where the constitutional issue was one that had not been previously identified. Id. at 359. Lambright acknowledges that competence of counsel existed as a constitutional issue well before his case began. Strickland itself instructed that eases decided under different standards need not be reassessed in the light of the changes in the test for ineffective assistance of counsel. Strickland, 466 U.S. at 696, 104 S.Ct. at 2068-69. Further, the Second Circuit has observed that, after years of applying the farce, sham and mockery and minimal competency tests, the court has never found a case that turned on the choice of standard. Trapnell v. United States, 725 F.2d 149, 153 (2d Cir.1983). This case does not either. Lambright next contends that Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) suggests that a state court’s procedural rules should be relaxed where the claim is one of ineffective assistance of counsel. That case noted that when the same lawyer represents the defendant at trial and on direct appeal, there is little chance for ineffectiveness issues to be discovered. A lawyer cannot easily recognize his own errors and a lay defendant probably could not without consulting separate counsel. Id. at 378 (refusing to extend Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) to bar Sixth Amendment habeas corpus action where the claimed ineffectiveness was the failure to challenge an alleged Fourth Amendment violation). Those concerns do not exist in Mr. Lam-bright’s case. He was represented by separate counsel on appeal. The factual basis existed and could have been presented by appellate counsel. The choice not to do so does not call for any relaxation of the state’s procedural rules. Any complaint that the direct appellate process is insufficient due to its limited ability to conduct fact-finding should have been addressed to the appellate court, who could, and frequently did in other cases, stay its proceeding to allow fact-finding in the trial court. Had Lambright desired to present mitigation evidence, the appellate court could have returned the claim to the trial court for that purpose. His failure to raise the issue prevented the appellate court from so directing or otherwise considering the claim. Lambright’s ineffective claim would not have been forfeited, had he followed the established procedure explained in Watson and Carriger. In sum, Lambright was provided a real and meaningful opportunity to make his ineffectiveness claim on direct appeal. That opportunity was not so ill-defined as to justify excusing Lambright’s failure. He suffered no violation of his rights to due process in being required to present the claim first on direct appeal. Lambright next argues that the state rule is not adequate because it has not been regularly and consistently applied by Arizona courts. He correctly points out that a state rule, to be an adequate ground barring federal review, must be firmly established and regularly applied at the time of the default. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991); Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989); Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426-27, 72 L.Ed.2d 824 (1982); Harmon v. Ryan, 959 F.2d 1457 (9th Cir.1992). Referring to six state cases, Lambright attempts to illustrate Arizona’s failure to consistently apply Rule 32.2(a)(3) to claims of incompetent counsel. It is interesting to note that of the six cases Lambright cites, only two address the issue of procedural bar under Rule 32.2. Neither of those cases are helpful to Lam-bright’s position. In Arizona v. Scrivner, 132 Ariz. 52, 643 P.2d 1022 (Ct.App.1982), the appellate court found the ineffectiveness claim raised for the first time in a post-conviction petition procedurally barred due to waiver. This is proper and consistent with the state supreme court rulings of the time, as discussed above. The second case relied upon by Lambright that addresses procedural bar is Arizona v. Carriger, 132 Ariz. 301, 645 P.2d 816 (1982). In that case, the supreme court rejected the government’s contention that the ineffectiveness claim was procedurally barred. The basis of that bar was 32.2(a)®—not 32.2(a)®. Rule 32.2(a)(2) bars only those claims that were raised and considered by the appellate court. As such, Carriger is inapposite. Perhaps more importantly, the Ninth Circuit recently made clear that the contention that the Arizona Supreme Court has not regularly and consistently relied on procedural default has no merit. See Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir.1992), cert. denied, 507 U.S. 992, 113 S.Ct. 1600, 123 L.Ed.2d 163 (1993) (rejecting argument that Arizona’s reliance on procedural default was so unpredictable and irregular that it does not provide an adequate ground for disposing of claims). Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir.1996) (parallel citation and additional history omitted, style added). Lam-bright’s argument that the Arizona Supreme Court did not consistently and regularly apply Rule 32.2(a)(3) is unavailing. The Petitioner next challenges the trial court’s finding that he had knowingly and voluntarily waived the ineffectiveness claim by failing to raise it on direct appeal. Failure to comply with Rule 32 procedures results in a determination that the petitioner waived his right to present a Rule 32 petition. Arizona v. Herrera, 121 Ariz. 12, 588 P.2d 305 (1978) (en banc), cert. denied, 441 U.S. 949, 99 S.Ct. 2175, 60 L.Ed.2d 1054 (1979). Rule 32.2(c) allows for the inference of a waiver where a petitioner does not raise a claim on appeal after having been advised of his right to do so by the sentencing judge. The sentencing judge need not identify every possible appellate issue that could be available. Judge Brown noted on the record that an appeal would be automatically filed. Lambright was appointed appellate counsel. No provision of Rule 32 created an exception for ineffectiveness claims that would remove them from the Rule 32.2(a)(3) requirement of raising all available issues on direct appeal. The Petitioner’s self-serving affidavit that he did not know that he was required to raise ineffectiveness claims on direct appeal does not overcome the inference of waiver. Arizona v. Wilson, 179 Ariz. 17, 20, 875 P.2d 1322, 1325 (Ct.App.1993). While he claims to have been unaware of the requirement, he did request separate counsel for his- direct appeal. His appellate counsel’s affidavit states that counsel was not aware of a procedural rule requiring ineffectiveness claims be brought on direct appeal and he did not so inform Lambright. Appellate counsel would have indeed been hard pressed to find a procedural rule that specifically stated that ineffective assistance of counsel claims must be raised on direct appeal. “The type of issues an appellant can raise in an appeal and the number of issues an appellant can raise are not limited by a per se rule. Cf. Ariz. Const.Art. 2, s 24; A.R.S. s 13-4031; Rule 31.13(c)(l)(iv) (none of which set any limits on appeal).” Arizona v. Carriger, 143 Ariz. 142, 692 P.2d 991 (1984) (en banc), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985). There is no case or rule that exhausts the list of possible issues to be raised on appeal. Rather, there is a body of Arizona Supreme Court law which, as discussed above, required presentation of ineffectivenéss claims on direct appeal. Further, Rule 32 provides that unless a claim is exempted, if it could have been brought on direct appeal, it is included in 32.2(a)(3). The appellate lawyer stated in his affidavit that he would have raised ineffectiveness on appeal had he reviewed the record under Strickland. This indicates that Lambright’s appellate counsel knew that ineffectiveness could be raised on direct appeal. The mere fact that counsel failed to recognize the factual or legal basis for a claim or failed to raise the claim despite recognizing it does not overcome a procedural default. Murray v. Carrier, 477 U.S. 478, 487-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986). Whether Judge Brown found a waiver based upon an inference from 32.2(c) or from the circumstances, his conclusion is supported by the record. Moreover, “a finding of procedural default requires only that the claim was rejected by the state court on independent and adequate state procedural grounds.” This Court need not specifically decide that Judge’s Brown’s finding was factually correct. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1307 (9th Cir.1996). The trial court judge did not err in finding that Lam-bright had waived his right to present the ineffectiveness claim in a Rule 32 petition. Lambright’s efforts to avoid procedural default are unavailing. His failure to raise his claim of ineffective assistance of counsel on direct appeal resulted in that claim being barred from collateral review pursuant to Rule 32.2(a)(3). That rule is an adequate, independent state law ground that precludes the federal habeas court from reaching the merits of the claim. However, despite Lam-bright’s failure to properly raise his claim on appeal, this Court would excuse the procedural default and consider the claim on the merits if cause and prejudice is established or a fundamental miscarriage of justice would result. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993). B. Cause and Prejudice .A federal habeas court will not review a claim that the state court has found procedurally defaulted unless the petitioner can demonstrate cause and prejudice, Wainwright v. Sykes, 433 U.S. 72, 87, 97, 97 S.Ct. 2497, 2506-07, 2511-12, 53 L.Ed.2d 594 (1977), or a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 494-95, 106 S.Ct. 2639, 2648-49, 91 L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 109, 102 S.Ct. 1558, 1562, 71 L.Ed.2d 783 (1982). Cause excusing default in this context is an objective factor, not fairly attributed to the Petitioner, Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991), where the factual or legal basis for a claim was not reasonably available to counsel at the time. Id. Ignorance of the prevailing law or inadvertent omission/mistake in failing to raise certain claims on appeal does not constitute cause. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Id. at 478, 106 S.Ct. at 2645. One way to establish cause is to show that “a constitutional claim is so novel that its legal basis is not reasonably available to counsel.” Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984). In Reed, the petitioner’s failure to appeal a jury instruction was excused because at the time, there was no question as to the instruction’s validity. It was not questioned until years later and was eventually struck down by the U.S. Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The absolute lack of legal basis for the claim at the time constituted good cause for failing to raise the issue on appeal. In such a case, there is little concern that the federal habeas court would be unduly encroaching upon the state courts’ interest in enforcing its procedural rules. Dugger v. Adams, 489 U.S. 401, 409, 109 S.Ct. 1211, 1216-17,103 L.Ed.2d 435 (1989). Lambright makes this argument, again suggesting that Strickland, which was decided after Lambright’s direct appeal, created the legal basis for his claim. Strickland did not contemplate such a result, and to the contrary, instructed that cases previously decided under differing standards need not be. reconsidered in the light of Strickland’s changes. Strickland v. Washington, 466 U.S. 668, 696-97, 104 S.Ct. 2052, 2069-70, 80 L.Ed.2d 674 (1984). As explained above, the legal basis for a claim of ineffective assistance of counsel existed well before Strickland and well before Lambright’s trial. The legal basis for Lambright’s ineffectiveness claims was available and was well grounded in principle. This contention fails to establish cause for failing to raise the claim on direct appeal. Lambright also contends that he did not raise ineffectiveness of counsel on appeal because it was impossible to do so. His claim could not be found within the record, but rather required an evidentiary hearing in order to bring forth the facts relevant to counsel’s performance. The fact-finding process of an evidentiary hearing is not conventionally available on appeal. Lambright, correctly notes that direct appeal is limited to matters appearing in the trial court record. Arizona v. Caldwell, 117 Ariz. 464, 573 P.2d 864 (1977) (en banc). Therefore, Lambright concludes, it was practically impossible for him to have raised his ineffectiveness claim, as it depended on development of matters outside the record. Lambright is wrong in his belief that it would have been practically impossible to raise the claim on direct appeal. As discussed above, the appellate courts were, during the relevant time period, routinely allowing ineffectiveness claims on appeal and returning the claims to the trial court for fact-finding if necessary. The Ninth Circuit has refused to apply a special standard to ineffectiveness claims, and requires that they be properly raised like all other claims in order to avoid default. “Wainright is equally applicable to ineffectiveness claims.” Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir.1992) (citing Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), cert. denied, 507 U.S. 992, 113 S.Ct. 1600, 123 L.Ed.2d 163 (1993)). Also, futility is insufficient to establish cause. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Arizona offered a procedure for Lambright to raise his claim, but he did not avail himself of that procedure. Ineffectiveness of appellate counsel is cause for excusing procedural default. Murray, 477 U.S. at 488, 106 S.Ct. at 2645-46. The Petitioner does not specifically argue that appellate counsel’s performance is cause for his failure to raise the trial counsel ineffectiveness claim on appeal, but he does claim that appellate counsel’s alleged numerous shortcomings are independent instances of ineffective assistance of counsel. This claim was also defaulted in the state court by Lambright’s failure to raise the claim in his first two Rule 32 petitions. Before an ineffectiveness claim may be used to establish cause for a procedural default, the claim must be properly presented to the state court as an independent claim. Murray, 477 U.S. at 488-89, 106 S.Ct. at 2645-46. Lam-bright did not present the appellate counsel claim in the state court as required by Rule 32. Accordingly, that claim is procedurally barred and cannot be used to establish cause for the prior default of not raising the trial counsel claim on direct appeal. Under Lambright’s logic, he would be forced to claim ineffective assistance of collateral post-conviction relief counsel. After all, it was the Rule 32 counsel who failed to raise ineffective assistance of appellate counsel in either of the first two Rule 32 petitions. There is no right to counsel in Rule 32 proceedings, so there is no constitutional implication. Pennsylvania v. Finley, 481 U.S. 551, 556, 107 S.Ct. 1990, 1993-94, 95 L.Ed.2d 539 (1987) (denying right to counsel in state collateral proceedings after completion of direct review); Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991) (declaring no constitutional right to any attorney in state post-conviction proceedings, so attorney error in those proceedings cannot amount to ineffective assistance of counsel and therefore may not constitute cause); Bonin v. Vasquez, 999 F.2d 425, 429-30 (9th Cir.1993) (ruling that attorney error at post-conviction proceeding is not cause). Lambright has not demonstrated any cause for excusing his defaults. While a court need not examine the existence of prejudice once the petitioner fails to establish cause, Engle v. Isaac, 456 U.S. 107,134 n. 43, 102 S.Ct. 1558,1575 n. 43, 71 L.Ed.2d 783 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir.1991), the Court does so in this case in the interest of thorough consideration of Lambright’s position and as an alternative or additional reason for refusing to excuse Lambright’s procedural default. To establish prejudice in order to excuse default, a petitioner must show “not merely that the errors at trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting the entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1595, 71 L.Ed.2d 816 (1982). But for the alleged error, the petitioner might not have been convicted. Reed v. Ross, 468 U.S. 1, 12, 104 S.Ct. 2901, 2908, 82 L.Ed.2d 1 (1984). This means that actual harm must have resulted from the alleged constitutional violation. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir.1991). Lambright cannot make this showing because there is nothing to suggest that the outcome of the trial or sentencing would have been different but for the alleged errors of counsel. That is due to the overwhelming evidence of Lambright’s guilt and of the especially cruel and heinous nature of his crimes. At Lambright’s sentencing, Judge Brown made detailed findings. He found that Lam-bright killed for gratification, in a way sure to terrorize the victim. He wrenched the knife around inside Ms. Owen after repeatedly stabbing her in the chest and abdomen. He twisted the knife deep into her body, to either cause more damage or more pain. Lambright cut her throat so deeply that the knife penetrated the vertebrae. When she tried hopelessly to raise herself up on one arm, Lambright smashed her in the head with a rock. He later said, “Did you see her head bounce when I hit it with that rock?” He deliberately took Ms. Owen to that desolate location to kill her and to avoid detection. Afterward, he celebrated with the others. This Court does not find cause or prejudice for Lambright’s defaults. For these same reasons, this Court’s refusal to reach the merits does not result in a fundamental miscarriage of justice. This is not an extraordinary case where a constitutional violation has probably resulted in the conviction and death sentencing of an innocent person. Lambright has not made a colorable showing of actual innocence as required by McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) and Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Actual innocence with respect to the death penalty focuses on the factors which make a defendant eligible for a death sentence. It does not focus on additional mitigating evidence which was not introduced at trial. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). There is no cause, no prejudice, and no miscarriage of justice. II. TRIAL CLAIMS (Claims 1-10) A. Lesser Included Offenses Instruction (Claim 1) Lambright argues that the jury should have been instructed on the lesser included offenses to first degree murder. Based upon his statements to law enforcement officers, Lambright believes that the jury could have, if properly instructed, concluded that Lam-bright’s participation was not premeditated and that he was guilty of only a lesser crime of second degree murder, aggravated assault or simple assault. The problem for Mr. Lambright is again procedural default. He did not raise this issue in the state court until his second Rule 32 petition filed on November 3, 1991, and amended on March 13, 1992. The Rule 32 court rejected this claim, going so far as to amend the order denying relief to make clear that the ruling was based upon preclusion. Judge Brown amended his prior ruling that relied upon a “death is different” concept to find the claim barred by state law, but yet required a consideration of the merits of the claim. The amended order of April 9, 1993 contains a clear and express statement that Judge Brown relied on Rule 32 to deny the claim. The consideration of the merits was an alternative rationale for denying the claim. See Order of Apr. 9, 1993 at 2 (“he has waived the right to assert this claim in this petition and the claim is precluded”). For all the reasons discussed above in Part I, the Petitioner has defaulted on this claim and has not demonstrated cause and prejudice to overcome the procedural default. This Court is precluded from considering the merits of the claim. Lambright urges this Court to consider his trial claims in light of the performance of his trial counsel. He stresses that the trial errors cannot be viewed in a vacuum, but must be tested with an eye toward the ineffectiveness claims. While the Court agrees that thorough review demands a consideration of all the circumstances and the entire record, this Court is prevented from considering the ineffectiveness claims. As explained above, before ineffectiveness may be used to establish cause for a procedural default, the ineffectiveness claim must be properly presented to the state court as an independent claim. Lambright’s failure to do so precludes federal consideration of ineffectiveness as cause for the default of this trial claim. The claim that the trial court erred in failing to instruct the jury on lesser included offenses is precluded and must be denied. Even if this claim were not precluded, it would be denied on the merits based upon Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) (no constitutional requirement to instruct upon lesser-included offenses not supported by the evidence) and Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (premeditation and felony murder are not separate offenses requiring separate verdicts). Trial claim 1 is precluded and is alternatively denied on the merits. B. Felony Murder Jury Instruction In trial claim 2, Lambright posits that the trial court instructed the jury on felony murder in such a way that improperly characterized the burden of proof. That is, the State was relieved of its burden of proving the “in furtherance of’ element of felony murder. This, says Lambright, is a violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This claim suffers the same infirmity as trial claim 1. This claim was found waived and barred by the Rule 32 court, and thus its merits may not be addressed by this Court. This claim too must be denied. C. Dual Juries (Claim 3) The trial court severed the cases of Smith and Lambright, upon defense request. It held a joint trial with separate juries for each defendant. Lambright argues in trial claim three that this dual jury procedure violated the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, he contends that Smith’s defense strategy was to blame Lambright. Lam-bright’s cross-examination of witnesses would always follow that of Smith, so Smith had the opportunity to blame Lambright first during cross-examination. Also, errors made during Smith’s cross-examinations “rubbed off” onto Lambright. Further, the trial judge’s warning to the jury that some evidence was admissible only against Smith must have introduced jury speculation each time they were removed from the courtroom. Lastly, Lam-bright argues that state law did not allow for dual juries. Violation of state law constitutes a violation of his federal constitutional right to due process under the Fourteenth Amendment. The State responds that while Lambright raised the issue of dual juries on direct appeal, he now raises new allegations in his amended petition that were not presented to the state court. On appeal the bases for the dual jury claim were that there was no separate defense table, that there was the possibility of impermissible jury speculation on inadmissible evidence presented to Smith’s jury, and that the dual jury procedure was not provided by state law. For the first time, Lambright now presents as bases for the dual jury claim, the “rub off” from the cross-examinations and a due process requirement that a state comply with its own procedures. The Respondents characterize these new bases as sub-claims and argue that they are not exhausted because they have never been presented to any state court. The Respondents are correct. The factual and legal basis for a claim must be presented to the state court so that the state has a reasonable opportunity to address the claim and correct any violation of federal rights. Duncan v. Henry, — U.S. —, —, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (per curiam); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir.1996). Merely raising a claim without the pertinent supporting facts and law does not provide the state a fair opportunity to consider the claim. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (state prisoner must show cause and prejudice for failing to raise same claims and to develop supporting facts in state court). While the use of one defense table for all defendants in a criminal trial may fall well within federal law, a subordinated cross-examination by one of the defendants may not. This Court does not so rule at this time, but only points out that claims are dependent upon their factual and legal background and are not sustained based upon broad headings or titles. Mr. Lambright did not present the operative facts to the state court which would have allowed the state court to apply controlling legal principles to the facts bearing on the claim. He has therefore not exhausted his claim that the cross-examination order and its effects violated his constitutional rights. He also has not exhausted his claim that the use of dual juries without such a state procedure constituted a violation of his rights of due process. Notwithstanding Lambright’s failure to properly exhaust these claims, this Court will treat them as technically exhausted. Too much time has been lost in this case. Lambright’s previous failures in satisfying the exhaustion requirement have resulted in nearly nine years of delay. The State, the victims, the Petitioner, and the federal system is owed better. The Court will not allow Mr. Lambright to once again return to the state court in effort to exhaust this claim. The President recently signed into law Title I, Habeas Corpus Reform, as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996). Section 104 of Title I amends 28 U.S.C. § 2254, allowing a federal habeas court to deny a writ of habeas corpus on the' merits, despite failure to exhaust available state remedies. 110 Stat. 1214, 1218. This power to deny a claim appears consistent with a respect for the states’ role in remedying federal violations. Title I does not confer the power to grant a writ in the absence of exhaustion. This leaves intact the state’s ability to correct constitutional violations in the first instance. The federal courts will not grant a writ without state consideration of the federal claim. Ostensibly, Title I authorizes the actions of this Court today in moving beyond Lambright’s failure to exhaust his state remedies. While the Court takes this step with the awareness of Title I, it does not do so upon sole reliance of Title I. The applicability and implications of this new law are far from clear at this point. Rather, this Court additionally bases its decision to excuse the failure to exhaust on Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) and its progeny. Coleman’s first footnote explains: This rule [of requiring an express statement of state reliance on independent, adequate state law grounds] does not apply if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred. In such a case there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims. Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. at 2557 n. I. What this means to Lambright is that if this Court were to require proper exhaustion, he would return once again to the state court for consideration of this claim. The state court would find him procedurally barred from relief due to Rule 32.2. This is because he did not raise the bases for the claim on direct appeal. Further, he did not raise the claim at all in his previous collateral proceedings petitions. It would therefore cause unnecessary further delay without benefit. The state court would not reach the merits of the claim, so Lambright has both technically exhausted and procedurally defaulted the claim. So, while lack of proper exhaustion does not prevent federal consideration, procedural default does. Because the state court would determine, should Lambright return there with this claim, that he has procedurally defaulted under Rule 32, he has in fact, in this Court, defaulted the claim based upon cross-examination and state law violation as a due process violation. The cause suggested for this default is again, trial counsel’s alleged incompetency. As stated above, ineffectiveness of counsel cannot establish cause where the ineffectiveness claim has not been presented to the state court as an independent claim. Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). The Petitioner has failed to establish cause and prejudice to overcome the procedural default and as such, the claim must be denied. What remains then is the aspect of trial claim 3 which contends that jurors were impermissibly allowed to speculate upon evidence that was presented to Smith’s jury. The Arizona Supreme Court criticized Judge’s Brown use of two juries, concluding that the use of dual juries was the creation of a local rule not explicitly authorized by the state rules of criminal procedure. This exceeded the trial court’s discretion, but did not result in any actual prejudice to Mr. Lambright. Although the practice was condemned as an unauthorized procedure, it was not condemned as violative of the United States Constitution and was not reversible error in Lambright’s case. Arizona v. Lambright, 138 Ariz. 63, 673 P.2d 1, 8 (1983), cert. denied, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 203 (1984). The state supreme court revisited this issue in Hedlund v. Sheldon, 173 Ariz. 143, 840 P.2d 1008,1011 (1992) (en banc). Overruling Lambright, thé court determined that the decision to utilize two juries “is not a rule at all.” . Rather, it is “ ‘the exercise of an individual judge’s discretion to use a particular technique in order to meet a specific problem’ in a single case.” Hedlund, 173 Ariz. at 147, 840 P.2d at 1011 (quoting Lambright, 138 Ariz. at 71, 673 P.2d at 16 (Feldman, J., specially concurring)). A trial judge may employ innovative techniques, while being sensitive to the unique difficulties of a capital case. Id. The Ninth Circuit agrees that capital cases can present special problems. In Beam v. Paskett, 3 F.3d 1301, 1304 (9th Cir.1993), cert. denied, sub nom., Arave v. Beam, — U.S. —, 114 S.Ct. 1631, 128 L.Ed.2d 354 (1994), the court held that, in a non-capital case, the use of dual juries does not constitute a per se violation of the defendant’s rights under the Fifth, Sixth and Fourteenth Amendments. It did not however, determine whether this would hold true in a capital ease. Since it vacated Beam’s death sentence on other grounds, the court did not decide whether the use of dual juries in a case where death was imposed would be unconstitutional. Id. at 1303. The court did, nonetheless, note that capital cases require “exacting constitutional scrutiny” because a life will be taken. Id. at 1304. The Ninth Circuit recognized: The dual jury procedure introduces additional complexity and likelihood of error into the trial and thereby impairs a defendant’s ability to conduct his defense. For this reason, a dual jury verdict is inherently more dubious than an ordinary verdict— even in the absence of a showing of specific prejudice. Id. Mr. Lambright cites to this passage, arguing that Beam instructs that there is no need for actual prejudice when a defendant receives the death penalty. A capital case, with its unique problems, and unlike a case where death is not imposed, does not require a showing that the verdict was unreliable. Because a dual jury verdict is inherently more dubious, it is inherently prejudicial. This Court disagrees. What Beam teaches is that a death penalty case is different, not in its procedures, but in the severity of the punishment. Because the ultimate penalty will be imposed, the trial court must be particularly vigilant in ensuring that the penalty will not be imposed in the absence of a rehable verdict of guilt. Beam continued: The degree of unreliability is not dependent, however, upon whether the trial is a capital one or not. Cf. Beck v. Alabama, 447 U.S. 625, 642-43, 100 S.Ct. 2382, 2393, 65 L.Ed.2d 392 (1980) (stating that jury verdicts following a failure to give a