Lockett v. Puckett (980 F. Supp. 201, 1997)

United States District Court for the Southern District of Mississippi 1997-10-16

Citations

Full opinion text

OPINION AND ORDER

BARBOUR, District Judge.

This cause is before the Court on the Petition Under Title 28 U.S.C. Section 2254 for Writs of Habeas Corpus by a Petitioner in State Court Custody Under-Sentences of Death filed on behalf of the Petitioner, Carl Daniel Lockett (“Lockett”). Lockett has also filed a Motion for Partial Summary Judgment and a Motion for an Evidentiary Hearing. On August 30, 1996, this Court issued an Order granting in part Petitioner’s Motion for an Evidentiary hearing limited in scope to the following issues:

1. Competency of the Petitioner Carl Daniel Lockett to stand trial; and

2. Ineffective assistance of trial counsel for failure to raise the issue of Petitioner’s competency to stand trial and for failure to present any evidence of diminished mental capacity in the sentencing phase of Petitioner’s trials.

August 30, 1996, Order at 1. On February 27 and 28, 1997, an evidentiary hearing was held, and both Petitioner and Respondent (hereinafter “the State”) presented testimony from witnesses and submitted various documents into evidence. Having considered the entire court file in this matter, including the transcripts of both trials, and all the documents submitted by the parties,- including supporting and opposing memoranda, and having considered the evidence presented at the evidentiary hearing, the Court finds as follows: (1) the Petition Under Title 28 U.S.C. Section 2254 for Writs of Habeas Corpus by a Petitioner in State Court Custody Under Sentences of Death should be granted in part such that the sentence of death imposed on Lockett for the murder of John Earl Calhoun should be vacated; all other grounds for relief raised in the Petition should be denied; (2) the Motion for Partial Summary Judgment should be granted in part such that the sentence of death imposed on Lockett for the murder of John Earl Calhoun should be vacated; all other issues raised in the Motion for Partial Summary Judgment should be denied; and (3) the Motion for Evidentiary Hearing should be denied in part.

I. Factual Background

During the early morning hours of December 13, 1985, Lockett arose and, carrying a .32 caliber pistol and a .22 caliber rifle, walked through the woods to the home of Mr. and Mrs. John Calhoun in Rankin County. Longtime residents of the small- Puckett community, the Calhouns lived with their two teenage sons a short distance from the home Lockett shared with his brother and sister.

Lockett crept up toward the back of the Calhoun house and waited until. he saw John Calhoun and his two sons leave. He then walked to the carport and, believing that Calhoun would return soon, walked through the door into the .house. On seeing Mrs. Calhoun seated watching television, Lockett grabbed her and forced her through the various rooms of the house, “looking for things.”

Shortly thereafter Mr. Calhoun returned and drove his ear into the driveway. Lockett hid behind the door and responded to Mrs. Calhoun’s pleas for mercy with an order for her to “be quiet.” As Mr. Calhoun walked through the front door, Lockett launched a volley of gunfire from the .32 pistol. Although Mr. Calhoun was struck by the first shot, Lockett fired 3-4 more times.

It was stipulated at trial that John Calhoun was killed, as his wife watched, by three .32 caliber gunshot wounds to the left chest, right chest and back. It was further stipulated that the bullets came from a gun matching thé type seized in a later search of Lockett’s bedroom. '

Despite Mrs. Calhoun’s pleas that he go ahead and kill her at the house rather than force her to leave with him, Lockett forced her to remove her dead husband’s wallet, grabbed her and marched her to her car. He took the credit cards from John Calhoun’s wallet and drove Mrs. Calhoun to a nearby abandoned egg house owned by Lockett’s grandmother. Mrs. Calhoun was executed by Lockett’s two rifle shots to her head. The defense stipulated that Mrs. Calhoun’s wounds were inflicted by a .22 caliber rifle of the type removed from the defendant’s bedroom during the later search. Thereafter, .Lockett stripped the Calhouns’ car, hid the car parts in the egg house, and walked back through the woods to his house. Once there, he hid the guns and credit cards and went to sleep.

John Calhoun’s body was found by his brother within an hour or two of the killing. An intensive investigation followed involving bloodhounds. Later that same day, officers found Mrs. Calhoun’s body, the stashed car parts, and the abandoned car. Officers also recovered from the egg house a spiral composition book bearing the name of Carl Lockett. Further development of leads led authorities to obtain a warrant and search Lockett’s room, a search which uncovered both murder weapons (which had been stolen in earlier community burglaries), John Calhoun’s credit cards and a blank cheek bearing the Calhoun name.

Thereafter, Lockett was taken into custody. After waiving his rights at the Rankin County Sheriffs office, Lockett confessed. Subsequently, another waiver was made and Lockett tendered a complete tape-recorded account of the crime.

Lockett v. State, 517 So.2d 1317, 1320-21 (Miss.1987).

II. Procedural History

A. Murder of John Calhoun: Case 1

Lockett was indicted in the Circuit Court of Rankin County, Mississippi, for the murder of John Calhoun. Following a change of venue, Lockett was tried in the Circuit Court in Pascagoula, Mississippi, with the Honorable Robert L. Goza, Rankin County Circuit Judge, presiding. On April 2, 1986, a jury convicted Lockett of the capital murder of John Calhoun and, after hearing further testimony, sentenced him to death. Lockett filed various post-trial motions, all of which were denied. Lockett was represented at the trial by William O. Townsend (“Townsend”) and David Clark.

Lockett appealed his conviction and sentence to the Mississippi Supreme Court, and all assignments of error were denied. Lockett was represented by Clive A. Stafford Smith in his direct appeal. Lockett filed a Petition for Writ of Certiorari to the United States Supreme Court which was also denied. Lockett v. State, 517 So.2d 1317 (Miss.1987), cert, denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). Lockett was represented by Robert E. Morin in his Petition for Certiorari.

Lockett filed a Motion to Vacate or Set Aside Judgment, Conviction and Sentence of Death in a post-conviction proceeding. The Motion was denied by the Mississippi Supreme Court, and a subsequent Petition for Writ of Certiorari to the United States Supreme Court was denied. Lockett v. State, 614 So.2d 888 (Miss.1992), cert, denied, 510 U.S. 1040, 114 S.Ct. 681, 126 L.Ed.2d 649 (1994). Lockett was represented by Rebecca Wiggs (‘Wiggs”) in the post-conviction proceeding, and by Wiggs and James W. Craig (“Craig”) in his Petition for Certiorari.

Lockett filed a second Motion to Vacate or Set Aside Judgment, Conviction and Sentence of Death, and the Motion was denied by the Mississippi Supreme Court. A subsequent Petition for Writ,of Certiorari to the United States Supreme Court was also denied: Lockett v. State, 656 So.2d 68 (Miss.), cert: denied, 515 U.S. 1150, 115 S.Ct. 2595, 132 L.Ed.2d 842 (1995). Lockett was represented by Craig, Julie Ann Epps and W.S. Moore in these proceedings.

B. Murder of Geraldine Calhoun: Case 2

• Lockett was indicted in the Circuit Court of Rankin County, Mississippi, for the murder of Geraldine Calhoun. Following a change of venue, Lockett was tried in the Circuit Court in Lamar County, Mississippi, with the Honorable Alfred G. Nicols, Jr., Rankin County Circuit Judge, presiding. On May 6, 1986, a jury convicted Lockett of the capital murder of Geraldine Calhoun and, after hearing further testimony, sentenced him to death. Lockett filed various post-trial motions, all of which were denied. Lockett was represented in both phases of Case 2 by Townsend, Cullen C. Taylor and William E. Andrews, III.

Lockett appealed his conviction and sentence to the Mississippi Supreme Court, and all assignments of error were denied. Lockett'filed a Petition for Writ of Certiorari to the United States Supreme Court which was also denied. Lockett v. State, 517 So.2d 1346 (Miss.1987), cert, denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988).

Lockett filed a Motion to Vacate or Set Aside Judgment, Conviction and Sentence of Death in a post-conviction proceeding. The Motion was denied by the Mississippi Supreme Court, and a subsequent Petition for Writ of Certiorari to the United States Supreme Court was denied. Lockett v. State, 614 So.2d 898 (Miss.1992), cert, denied, 510 U.S. 1040, 114 S.Ct. 681, 126 L.Ed.2d 649 (1994).

Lockett filed a second Motion to Vacate or Set Aside Judgment, Conviction and Sentence of Death, and the Motion was denied by the Mississippi Supreme Court. . A subseqúent Petition for -Writ of Certiorari to the United States Supreme Court was also denied. Lockett v. State, 656 So.2d 76 (Miss.), cert, denied, 515 U.S. 1150, 115 S.Ct. 2595, 132 L.Ed.2d 842 (1995).

C. Petition in This Court

Lockett has now filed a Petition Under Title 28 U.S.C. Section 2254 for Writs of Habeas Corpus by a Petitioner in State Court Custody Under Sentences of Death. In his Petition, Lockett asserts that all of the asserted grounds for relief have been previously presented in state court, Petition at 36, ¶ 13, and the State does not contest that Lockett has exhausted his state court remedies. The Court will address each ground raised in the Petition. Before doing so, however, the Court will set forth the applicable standard of review which this Court must use in deciding whether the grounds alleged in the Petition warrant the granting of habeas relief for Lockett’s convictions and death sentences in Case 1 and Case 2.

III. Applicable Legal Standard

Lockett filed his Petition in this Court on November 20, 1995. On.April 24, 1996, the President signed into law the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104,' 132, 110 Stat. 1214 (1996) (“AEDPA”), amending various portions of the statutes governing the consideration of habeas petitions by federal courts. See 28 U.S.C. §§ 2244, 2253, 2254 and 2255, as amended by the AEDPA. The State, relying upon Drinkard v. Johnson, 97 F.3d 751, 765-66 (5th Cir.1996), cert, denied, — U.S. --, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997), argues that the provisions of the AEDPA should apply to this case. After the briefing was completed in this case and several months after this Court conducted an evidentiary hearing, the United States Supreme Court decided the case of Lindh v. Murphy, — U.S.-, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), concluding that the provisions of chapter 153 of the AEDPA “generally apply only to cases filed after the Act became effective.” Id. at-, 117 S.Ct. at 2068. The United States Court of Appeals for the Fifth Circuit has now recognized that the Lindh decision overrules Drinkard and its progeny, to the extent that those cases applied the AEDPA retroactively to habeas petitions which were filed prior to April 24, 1996. Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir.1997). Because the instant Petition was filed prior to the enactment of the AEDPA, the Court will apply pre-AEDPA law to the issues raised by the Petitioner in this case.

IV. Analysis

Ground One: The “especially heinous, atrocious, or cruel" instruction given to Petitioner’s juries was vague in violation of the Eighth and Fourteenth Amendments to the United States Constitution and requires new trials.

The juries in Case 1 and Case 2 were instructed as follows with regard to the “especially heinous, atrocious and cruel” aggravating factor:

The Court instructs the jury that the term “especially heinous, atrocious or cruel” as used elsewhere in these instructions is defined as being a conscienceless or pitiless crime which is unnecessarily torturous to the victim.

Sentencing Instruction 2, Case 1 (R. 663); Case 2 (R. 664). Lockett asserts that this instruction is unconstitutionally vague in violation of the Eighth and Fourteenth Amendments to the United States Constitution as interpreted by the United States Supreme Court. Specifically, in Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 1859, 100 L.Ed.2d 372 (1988), the Supreme Court concluded that some of the language used to define the challenged aggravating circumstance—“especially heinous, atrocious, or cruel”—was unconstitutionally vague. See also Clemons v. Mississippi, 494 U.S. 738, 742-43, 110 S.Ct. 1441, 1445, 108 L.Ed.2d 725 (1990) (invalidating an instruction containing only the “bare terms of the Mississippi statute” allowing the jury to consider in aggravation whether the murder was “especially heinous, atrocious, or cruel”). In Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), the Supreme Court declared that a habeas petitioner could rely on the Maynard holding, even if his conviction became final before that decision, because the decision was not a new decision.

The task for this Court is to determine whether the language used in the instructions given in both of Lockett’s trials is constitutionally sufficient pursuant to this line of Supreme Court cases. This inquiry is a purely legal question which the Court will review de novo.

The decisions by the Mississippi Supreme Court addressing the merits of this issue as to both of Lockett’s trials are identical:

In Mississippi, the proper instruction defining the especially heinous aggravating factor comes from Coleman v. State, 378 So.2d 640, 648 (Miss.1979): “the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies—the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” Lockett received such an instruction at his sentencing trial in Sentencing Instruction 2: “The Court instructs the Jury that the term ‘especially heinous, atrocious, or cruel’, as used elsewhere in these instructions is defined as being a conscienceless or pitless [sic] crime which is uneeessarily [sic] torturous to the victim.” The instruction, as given, tracks the Coleman language. Therefore, the jury in Lockett’s case was properly instructed on the especially heinous aggravating factor. This claim is without merit.

Lockett, 614 So.2d at 904-05 (emphasis added); Lockett 614 So.2d at 896 (emphasis added). Lockett argues that the essential portion of the Coleman language—“the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies”—was not included in the instructions in his trials. The omission of this language, according to Lockett, failed to properly channel the discretion of the jury as required by Maynard. In rebuttal to the argument of the State that the instruction contains a proper limiting definition, Lockett asserts that “Respondents present no cases—either from Mississippi or anywhere else—upholding the constitutionality of such a ‘definition.’ There are none.” Memorandum in Rebuttal at 3.

The Court agrees with the decisions of the Mississippi Supreme Court, concluding that Instruction 2 given in each of Lockett’s trials contained a proper limiting definition of the especially heinous, atrocious or cruel aggravating factor. Lockett’s argument that no cases exist upholding the constitutionality of this instruction is not persuasive. The United States Supreme Court has recognized that more than one construction of this particular aggravating circumstance is permissible:

In Maynard v. Cartwright, we expressed approval of a definition that would limit Oklahoma’s “especially heinous, atrocious, or cruel” aggravating circumstance to murders involving “some kind of torture or physical abuse,” ... but we also noted that such a construction was not the only one “that would be constitutionally acceptable.”

Walton v. Arizona, 497 U.S. 639, 654-55, 110 S.Ct.. 3047, 3057, 111 L.Ed.2d 511 (1990) (emphasis added) (quoting Maynard, 486 U.S. at 364-65, 108 S.Ct. at 1859). Thus, even though the United States Supreme Court has implicitly recognized the validity of the Coleman language as being a “proper definition” for the especially heinous aggravating factor, Clemons, 494 U.S. at 751, 110 S.Ct. at 1450, such recognition may not be viewed as a holding that such language is the only proper limiting instruction. Furthermore, in Clemons, the Supreme Court, discussed the decision of the Mississippi Supreme Court in the following terms:

The Mississippi Supreme Court distinguished this case from Maynard and sustained Clemons’ death sentence on the following grounds: ... (2) the Mississippi Supreme Court has previously given the “especially heinous” factor a constitutional limiting construction, narrowing that category to murders that are conscienceless or pitiless and unnecessarily torturous to the victim ....

Id. at 743-44, 110 S.Ct. at 1445-1446. While such language is not a holding that the emphasized language is the proper limiting construction of the “especially heinous” aggravating factor, it is certainly worth noting that the Supreme Court chose only this language in setting forth the issues addressed by the Mississippi Supreme Court. For these reasons, this Court will not disturb the conclusion of the Mississippi Supreme Court that the challenged instruction sufficiently tracks the Coleman language so as- to properly channel the discretion of the juries during the sentencing phase of Lockett’s trials. Lockett is not entitled to habeas relief based upon this ground.

Ground Two: Petitioner was deprived of his right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution during both phases of his trials and on direct appeal.

Lockett alleges that his trial counsel was ineffective in the guilt and sentencing phases in both of his trials. The Court will address the allegations concerning each phase separately. Furthermore, each issue addressed by the Court pertains to both Case 1 and Case 2 unless otherwise indicated.

1.Guilt Phase

Lockett asserts that his trial counsel erred in the following ways during the guilt phase of each trial:

1. Failure to request a competency hearing despite Petitioner’s organic brain damage and Dissociative Identity Disorder.

2. Failure to argue Petitioner’s capacity to commit the crime.

3. Failure to examine the search warrant before the suppression hearing concerning that warrant.

4. Failure to cross-examine government witnesses concerning their flatly contradictory testimony regarding when Petitioner signed a waiver of rights form.

5.* Failure to object to the validity of the indictments.

6. Failure to inquire sufficiently into the identity of the State’s “confidential informant.”

7. Failure to investigate other persons potentially involved in the crime despite the fact that the police had interrogated another suspect and Petitioner’s statement that another person had “been the lookout.”

8. Failure to rehabilitate jurors regarding their views on the death penalty.

9. Failure to make an opening statement or present a single witness.

10.* Failure to raise the issue of or cross-examine Sheriff Torrence regarding his reported statement to Petitioner before the confession that “you have to account for that when Judgment Day comes.”

11.* Failure to object to the jury instructions which failed to set forth the essential elements of burglary and failed to provide Petitioner with a unanimous verdict.

Petition at 24-25. The issues marked with an asterisk(*) will be addressed substantively in subsequent portions of this opinion.

2.Sentencing Phase

Lockett charges that he was deprived of his right to effective assistance of counsel at the sentencing phase of each trial by his overburdened and distracted trial counsel. Specifically, Lockett asserts that his trial counsel erred in the following ways:

1. Failurfe to present evidence in mitigation, despite information available to him by reasonable investigation (including family member interviews, medical tests, or a client interview for more than the forty-five minutes that counsel met with Petitioner) such as Lockett’s organic brain damage, Dissociative Identity Disorder, drug and alcohol abuse, “blackouts,” troubled family background, emotional disturbances, helpfulness to his sister’s children.

2. Failure to investigate Petitioner’s single prior conviction for auto theft, which occurred because Petitioner was helping a child escape from an abusive home.

3. Failure to counter the prosecutions’ arguments regarding each of the aggravating circumstances.

4. Failure to explain to the juries the manner in which they should weigh the aggravating and mitigating circumstances.

5.* Failure to point out to the juries that there was no evidence to support the “heinous, atrocious, or cruel” aggravating circumstance.

6.* Failure to object to statements made by the prosecutor which amounted to prosecutorial misconduct, including numerous improper comments on the possibility of parole.

7.* Failure to object to the submission of the same underlying felonies used to elevate the charge to capital murder to elevate it once again in the penalty phase.

Petition at 24-25. The issues marked with an asterisk!*) will be addressed substantively in subsequent portions of this opinion.

3. Legal Standard

To merit habeas corpus relief on a claim of ineffective assistance of counsel, Lockett must demonstrate that his trial counsel’s performance fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). Lockett can only satisfy the first prong of this test if he demonstrates that his counsel’s errors were so egregious that he was deprived of the “counsel” guaranteed by the Sixth Amendment. Id. at 691, 104 S.Ct. at 2066. In order to show prejudice, Lockett must prove that the challenged conduct of his counsel rendered the proceeding “fundamentally unfair or unreliable.” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).

In analyzing Lockett’s claim of ineffectiveness, the Court .must engage in the strong presumption that trial counsel’s performance fell within the wide range of professional competence and that the original verdict was reliable. See Sawyer v. Butler, 848 F.2d 582 (5th Cir.1988), superseded on other grounds, Sawyer v. Butler, 881 F.2d 1273 (5th Cir.1989); Lavernia v. Lynaugh, 845 F.2d 493 (5th Cir.1988); Bridge v. Lynaugh, 838 F.2d 770 (5th Cir.1988); Thomas v. Lynaugh, 812 F.2d 225 (5th Cir.), cert, denied, 484 U.S. 842, 108 S.Ct. 132, 98 L.Ed.2d 89 (1987); Martin v. McCotter, 796 F.2d 813 (5th Cir.1986), cert, denied, 479 U.S. 1057, 107 S.Ct. 935, 93 L.Ed.2d 985 (1987). In discussing the Strickland standard, the United States Court of Appeals for the Fifth Circuit has noted the following:

In determining whether counsel’s performance satisfies the requirements of the Sixth Amendment, we must inquire whether, considering all the circumstances, counsel’s performance was reasonable under prevailing professional norms. Judicial scrutiny of counsel’s performance must be highly deferential; we must make every effort to eliminate the distorting effects of hindsight and evaluate the conduct from counsel’s perspective at the time.

Lavernia, 845 F.2d at 498.

It is not enough to show that some, or even most, defense lawyers would have handled the case differently. Green v. Lynaugh, 868 F.2d 176,178 (5th Cir.), cert, denied, 493 U.S. 831, 110 S.Ct. 102, 107 L.Ed.2d 66 (1989). As the Supreme Court has observed, “[i]t is all too tempting for a defendant to second-guess counsel’s assistance after a conviction.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. It is likewise too facile “for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Green, 868 F.2d at 178 (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).

The prejudice prong of the Strickland test requires the petitioner to “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; see also Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). The Fifth Circuit has recognized that the prejudice inquiry has been further narrowed by the Supreme Court: “[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.” Armstead v. Scott, 37 F.3d 202, 206-07 (5th Cir.1994) (citing Lockhart, 506 U.S. at 372, 113 S.Ct. at 844), cert, denied, 514 U.S. 1071, 115 S.Ct. 1709, 131 L.Ed.2d 570 (1995). An error by counsel, even if professionally unreasonable, does not warrant setting aside the .judgment of a criminal proceeding if the error had no effect on the judgment. Summit v. Blackburn, 795 F.2d 1237, 1242 (5th Cir.1986). A habeas corpus petitioner must affirmatively plead this resulting prejudice. Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir.1988)...

Because both the deficiency and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact, this Court must make an independent determination of whether counsel’s representation satisfied the Sixth Amendment. Martin v. McCotter, 796 F.2d 813, 817 (5th Cir.1986) (citing Mattheson v. King, 751 F.2d 1432, 1438 (5th Cir.1985), cert, dismissed, 475 U.S. 1138, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986)). The Court has considered all instances of Lockett’s claims of ineffectiveness of counsel but will discuss below only those claims relating to the ineffectiveness of trial counsel for failure to raise the issue of Lockett’s competency to stand trial and for failure to present any evidence of diminished mental capacity in the sentencing phase of Lockett’s trials. All instances not specifically discussed below unquestionably failed to meet the deficiency and/or prejudice prong of Strickland and, accordingly, are found to be without merit.

4. Analysis

The Court finds that the instances of ineffectiveness of counsel alleged by Lockett did not affect the guilt or sentencing phases of the trials, nor -did they render the guilty verdicts and subsequent death sentences unfair or unreliable. In examining the alleged instances of ineffective assistance of trial counsel, the Court notes that Lockett was represented in both phases of Case 1 by William O. Townsend (“Townsend”) and David Clark, and both phases of Case 2 by Townsend, Cullen C. Taylor and William E. Andrews, III. Lockett, 614 So.2d at 89£ and Lockett, 614 So.2d at 903.

The thrust of Lockett’s allegations regarding trial counsel’s ineffectiveness concern Lockett’s mental capacity. First, Lockett asserts that the failure of his trial counsel to request a competency hearing, despite his organic brain damage and Dissociative Identity Disorder, constitutes ineffectiveness. Petition at 24. Second, Lockett contends that his trial counsel’s failure to pres-: ent mitigation evidence in the sentencing phases regarding his organic brain damage and Dissociative Identity Disorder was ineffective assistance of counsel. Petition at 24-25.

a. Competency to Stand Trial

The record reflects that in Case 1, Lockett’s trial counsel filed a motion for a private psychiatric and psychological examination of his client. Circuit Court Judge Robert L. Goza entered an order granting this motion. The order required that Lockett be psychiatrically evaluated by Dr. Timothy Summers (“Summers”) and psychologically evaluated by a psychologist chosen by Summers. Exhibit S-10. The order specifically stated:

IT IS HEREBY ORDERED AND ADJUDGED that immediately upon the completion of the psychiatric and psychological evaluations that Dr. Timothy Sum[m]ers and the psychologist of his choosing specifically advise the Court on their opinions as to whether or not the Defendant knew and appreciated the difference between right and wrong on December 13,1985, the date the alleged crimes were committed, and as ■to their opinions as to whether the Defendant is competent to stand trial and capable of assisting his counsel in preparing his defense in these causes.

Exhibit S-10.-

On March 7,1986, Summers wrote a letter to Townsend stating that in order to perform a complete evaluation of Lockett, he had scheduled several tests, including an Electroencephalogram, CT brain scan, and neuropsychological " studies. Exhibit S-l. The results of the electroencephalogram and the CT brain, scan or whether these tests were ever performed is uncertain from the record.

William G. Johnson, Ph.D. (“Johnson”), a clinical psychologist, also examined Lockett, performing both a psychological evaluation, at the request of the Court, and a neuropsychological evaluation, at Townsend’s request. A report of the court-ordered psychological examination was made on March 24, 1986. Exhibit S-3. Johnson specifically concluded as follows:

There is no evidence that Mr. Lockett suffered from a mental disorder. He is clearly competent to stand trial, and according to his description of the events surrounding the criminal charges, he.could adequately distinguish between right and wrong.

Exhibit S-3, Section VI.

Johnson conducted the neuropsychological evaluation of Lockett on March 18, 1986. In the first paragraph of his evaluation report regarding this evaluation, Johnson states that: “This evaluation was requested [by Townsend] because Mr. Lockett told his attorney and other individuals involved in his evaluation, that he has had a number of head injuries since 1980.” Exhibit S-4. Johnson concluded in his report that “[i]t is unlikely that he would be unable to cooperate with his attorney due to memory/concentration problems, or an inability to understand what is being said to him.”. Exhibit S-4.

The finding that Lockett was competent to stand trial was not contradicted by experts testifying on Lockett’s behalf during the evidentiary hearing. Four out of five of the expert witnesses that testified were essentially asked the same question by the Court or counsel: “Was Lockett competent to stand trial?” The answer each time was either a definitive “yes” or I cannot answer that.

Based on these facts, this Court is hard-pressed to find that trial counsel’s failure to request a competency hearing falls below the objective standard of reasonableness guaranteed by the Sixth Amendment. Furthermore, even if trial counsel’s performance is assumed to be deficient on this point, Lockett has failed to prove any resulting prejudice as required by Strickland. Lockett has failed to establish by a reasonable probability that had a competency hearing been requested by Townsend and subsequently held by the state trial court, that he would have been determined to be incompetent to stand trial. In light of the information provided to Townsend in 1986, all of which stated that his client was competent to stand trial, Lockett’s contention that Townsend was ineffective by not requesting a competency hearing is unavailing.

b. Mitigation Evidence

Lockett asserts that his trial counsel was ineffective for his failure to present mitigating evidence at the sentencing phase of each trial. The evidence which Lockett .asserts was available to his counsel upon reasonable investigation is evidence of Petitioner’s organic brain damage, Dissociative Identity Disorder, drug and alcohol abuse, “blackouts” and emotional disturbances. Petition at 24. .

At the sentencing phase in Case 1, the State submitted a motion to incorporate the evidence presented in the guilt phase, which was granted by the trial court. The only other evidence .offered by the State was a certified copy of Lockett’s Texas auto-theft conviction, which was admitted into evidence over defense counsel’s objection. The State did not present any witnesses. Case 1 (R. 614-43).

On behalf of Lockett during .the sentencing phase in Case 1, Townsend offered into evidence a stipulation that Lockett had epilepsy, to which the State agreed. Lockett’s counsel also called four witnesses to testify on behalf of his client: Lockett’s mother, his father, his stepmother and his stepfather. Both the State and the defense made closing arguments during this phase. Case 1 (R. 614-43).

At the sentencing phase in Case 2, the State made an opening statement after defense counsel stated to the court that he would be making an opening statement. The State also moved to adopt the testimony which was introduced in the guilt phase, and the motion was granted. Finally, the. State offered a certified copy of Lockett’s Texas auto-theft conviction, which was entered into evidence over two defense objections. The State did not present any witnesses. Case 2 (R. 579-631).

In defense of-Lockett during the sentencing phase of Case 2, Townsend made an opening statement, presented the testimony of Lockett’s mother, and made a closing argument. Case 2 (R. 591-631). The record reflects that defense counsel spent approximately an hour and a half conferring with his client and his client’s family between the arguments concerning the jury instructions and the presentation of witness testimony. Case 2 (R. 591). The state court, at the request of defense counsel, elicited testimony from Lockett himself regarding his understanding of his decision not to testify on his own behalf during the sentencing phase of the proceedings. Case 2 (R. 609-610).

This Court initially notes that the failure of defense Counsel to offer mitigation evidence in the punishment phase of Case 2, except for the testimony of Lockett’s mother, is not per se ineffective. Rector v. Johnson, 120 F.3d 551, 564 (5th Cir.1997) (citing King v. Puckett, 1 F.3d 280, 284 (5th Cir.1993)). Further “[i]f such an omission is based on well informed, strategic decisions, it is “well within the range of practical Choices not to be second-guessed.’ ” Id. at 564 (citations omitted).

As stated previously, Lockett alleges that the failure of his trial counsel to present mitigating evidence during the sentencing phases of both trials, specifically to call Johnson as a witness, constitutes ineffective assistance of counsel. Lockett relies upon Johnson’s report of the 1986 psychological evaluation to support his claim that Townsend was ineffective. Exhibit S-3. Johnson testified during the evidentiary hearing held in this Court that if called as a witness in Lockett’s trials, he would have presented the following testimony regarding Lockett’s mental condition: Lockett has an IQ of 82; he is of low intelligence in that he reads on a third or fourth grade level; and he was reared in a home environment where there were frequent fights between his ‘parents and little opportunity for intellectual stimulation. 'Johnson also would have testified that Lockett was competent when he committed the crimes and competent to stand trial. Hearing Transcript at 272-75.

The Court finds that Townsend’s testimony reflects that he made a reasonable decision to forego calling Johnson as a witness at trial based upon the information contained in the rest of the psychological report. Hearing Transcript at 335-38. During his psychological evaluation, Lockett told Johnson that he and Geraldine Calhoun were having a sexual affair and that she was the one who shot her husband. Townsend made a strategic decision that any mitigation that could have been provided by Johnson’s testimony concerning Lockett’s low intelligence and home environment would clearly be outweighed by the harm that the sure introduction during cross-examination of Lockett’s statements to Johnson during his evaluation would cause. Townsend testified that he thought these statements by Lockett would have a detrimental effect on his case, especially since Lockett’s confessions were already part of the evidence. In his confessions, Lockett did not say anything about his alleged sexual affair with Geraldine Calhoun or the allegation that she shot her husband and begged Lockett to shoot her. Townsend testified that he believed that at the very least the information contained hi Johnson’s reports would make Lockett look untruthful and, therefore, any mitigating value would be diminished. Hearing Transcript at 327-70. The Court finds that this strategic decision was not unreasonable.

In addition, the State submits a letter written by the prosecution to Townsend in 1986 listing additional witnesses for the State. Exhibit S-8. Orbie Craft (“Craft”), the state prosecutor at both of Lockett’s trials, testified that these witnesses would have been called to rebut any evidence offered by the defense regarding Lockett’s mental condition, specifically the results of Johnson’s evaluations. Hearing Transcript at 319-21. Townsend’s testimony reflects that this letter and another supplemental witness list submitted by the State affected his decision not to present the alleged mitigating evidence. Townsend testified that he weighed the possible mitigating effect the mental condition evidence might have against the possible detrimental effect of the additional evidence which the prosecution intended to submit in rebuttal. Townsend then decided to forego presenting any of the alleged psychological mitigating evidence. •

In retrospect, the Court finds that Townsend’s decision to forego presenting the proposed testimony regarding Lockett’s mental capacity, either by experts or family members, was not unreasonable. Townsend made a strategic decision that such testimony would have been more harmful than helpful to Lockett’s defense. Such decisions should not be second-guessed by this Court over ten years after the fact. The Fifth Circuit has recognized the “heavy deference owed to trial counsel when deciding strategically to forego admitting evidence of a ‘double edged nature’ which might ultimately harm a defendant’s case.” Boyle v. Johnson, 93 F.3d 180, 188 (5th Cir.1996), cert, denied, - U.S. -, 117 S.Ct. 968, 136 L.Ed.2d 853 (1997). The Fifth Circuit further stated:

[A]ll the evidence that Boyle maintains should have been presented at the punishment phase of his capital murder trial had a double-edged quality. Accordingly, we find that Boyle has failed to overcome the strong presumption that these -informed tactical decisions were reasonable under the circumstances. Boyle has thus failed to satisfy the deficiency prong of Strickland.

Boyle, 93 F.3d at 188; see also Rector, 120 F.3d at 564 (concluding that “information that Rector allegedly suffered from child abuse, family instability, a poor educational background, low IQ, gunshot injuries, and that his mother was severely and chronically mentally ill” could well be considered aggravating, rather than mitigating, by the jury, and therefore, the failure of Rector’s counsel to present such evidence in mitigation does not constitute performance).

Assuming arguendo that Lockett has met the deficiency prong of Strickland, the Court finds that the failure to present testimony regarding Lockett’s mental condition at the sentencing phase of each of his trials did not prejudice Lockett by undermining the death sentences imposed by the jury. Lockett has “failed to show the existence of evidence of sufficient quality and force which, if introduced, would have more likely than not persuaded the jury that the death penalty was unwarranted.” Mann v. Scott, 41 F.3d 968, 984 (5th Cir.1994) (citations omitted), cert, denied, 514 U.S. 1117, 115 S.Ct. 1977, 131 L.Ed.2d 865 (1995). The Court is not persuaded that the substance of the witness testimony which Lockett asserts should have been presented regarding his mental condition undermined the reliability and confidence of the state court proceedings. Thus, Lockett has failed to satisfy the prejudice prong of Strickland.

The Court concludes that all of the instances of attorney ineffectiveness alleged by Lockett either do not meet the deficiency prong or the prejudice prong of Strickland. Though the performance by trial counsel could have been improved in certain instances, especially in retrospect, the Court is convinced that Lockett’s trial counsel sufficiently defended him during the guilt and sentencing phases of both capital murder trials. The proceedings were fair and reliable, and the Court is confident that the result of the trials and sentences received would not have changed had the alleged instances of deficiency not occurred. The Court therefore concludes that Lockett is not entitled to habeas relief based upon his claim of ineffective assistance of his trial counsel.

5. Direct Appeal

Lockett also contends that his appellate counsel, Clive Stafford Smith (“Stafford Smith”) was constitutionally ineffective for failing to raise certain issues on direct appeal which are raised in this Petition. The Strickland standard applies to appellate counsel as well as trial counsel. See McCrae v. Blackburn, 793 F.2d 684 (5th Cir.), cert, denied, 479 U.S. 965, 107 S.Ct. 466, 93 L.Ed.2d 411 (1986); Wicker v. McCotter, 783 F.2d 487 (5th Cir.), cert, denied, 478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986); Hamilton v. McCotter, 772 F.2d 171 (5th Cir.1985). Counsel is not ineffective merely because of a failure to raise issues requested by the defendant or for failure to raise every possible point or theory on appeal. Sharp v. Puckett, 930 F.2d 450, 452 (5th Cir.1991) (citations omitted).

Certainly, Stafford Smith could have raised on direct appeal all the additional issues thereafter raised by Lockett’s post-conviction counsel. However, the failure to raise every possible theory on appeal does not constitute ineffective assistance. In order for Lockett to have suffered any prejudice, the errors that appellate counsel failed to raise must have been meritorious and must have warranted habeas relief. Because this Court concludes that the additional alleged errors would not have given rise to a constitutional violation, Lockett’s appellate counsel is not deficient for failing to raise .these issues.

Ground Three: The state’s abuse of its peremptory challenges to exclude all black jurors from both of Petitioner’s juries deprived Petitioner of his right to equal protection under the Fourteenth Amendment to the United States Constitution.

1. Case 1

The trial involving the murder of John Calhoun began on April 1, 1986, approximately one month before the Supreme Court held in Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986), that a party seeking to exercise peremptory challenges to strike black members of a jury venire must “come forward with a neutral explanation for challenging” these potential jurors. Lockett concedes that because the trial in Case 1 occurred prior to the Batson decision, “it is difficult to imagine how such an objection could have been made at trial.” Memorandum in Support of Motion for Evidentiary Hearing at 39. Lockett asserts, however, that the post-trial discovery of evidence which would have supported a claim of purposeful discrimination by the prosecutor in violation of the holding in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), constitutes “cause” for the failure of trial counsel to raise a contemporaneous objection at trial.

The evidence offered by Lockett to show that, the prosecutors in Lockett’s trials engaged in purposeful discrimination includes the following:

1. The same prosecutors who tried Lockett’s cases in April and May, 1986, also prosecuted the cases of State v. Nixon, No. 1064 (Forest County Cir. Ct. May, 1986), and State v. Faraga, No. 1802 (Rankin County Cir. Ct. Feb., 1986), both of which were capital murder trials.

2. The prosecutors’ voir dire notes in Nixon, Faraga and Lockett’s Case ■ 2, contain evidence of racial discrimination against the black venire members.

a. To the right side of the names of each of the five black members of the venire in Case 2 against whom the State exercise peremptory strikes— Sandifer, Preston, Merritt, Oatis and McGinty—appears the letter “B”.

b. With respect to the Nixon venire, Assistant District Attorney Richardson wrote a handwritten note to District Attorney Craft saying: “It seems to be a lot of Blacks.”

c. At the top of the first venire list in Nixon is handwritten: “SEEMS TO BE A LOT OF BLACKS” (capitals in original).

d. The “B” designation appears to the right of the names of several members of the venire in Nixon as well.

Memorandum in Support of Motion for Evidentiary Hearing at 38. According to Lockett, the prosecutors’ voir dire notes would have formed the basis for a meritorious Swain objection had such notes been available to him. The discovery of such notes post-trial constitutes “cause” for a Swain objection not being made, and any such objection, had it been made, “would now be before the Court as a Batson objection.” Memorandum in Support of Motion for Evidentiary Hearing at 40; see also Ford v. Georgia, 498 U.S. 411, 420, 111 S.Ct. 850, 855, 112 L.Ed.2d 935 (1991) (a Swain objection at a pre-Batson trial must be treated as a Batson objection).

The State asserts that this claim was procedurally barred from consideration by the state court and is therefore barred from consideration by this Court. The State does not address the merits of the issue concerning whether the evidence presented by Lockett is sufficient to support a valid Equal Protection claim of racial discrimination as articulated in Swain.

Although this issue was found to be procedurally barred by the state court, this Court will address the issue out of an abundance of caution. The Court must therefore determine whether the evidence presented by Lockett would have been sufficient to show that the prosecutors in Case 1 violated the dictates of Swain. The Court concludes that the evidence presented by Lockett does not rise to the Swain standard which was applicable at the time of his trial.

The Swain test for establishing an equal protection claim is quite stringent:

We have decided that it is permissible to insulate from inquiry the removal of Ne- . groes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance.... In these circumstances, giving even the widest leeway to the operation of irrational but trial-' related suspicions and antagonisms, it would appear that the purposes of the peremptory challenge are being perverted. If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify.

Swain, 380 U.S. at 223-24, 85 S.Ct. at 837-838 (citation omitted).

The evidence presented by Lockett does not satisfy this test. Evidence that the prosecutors identified certain jurors by their race does not prove that the prosecutors “intended” to strike all of those jurors from the panel because of their race. Furthermore, even if the Court agrees with Lockett’s assessment that the prosecutors’ comments concerning the number of blacks on the panel—“seems to be a lot of blacks”—was an “obvious worry” for the prosecution, Lockett has failed to allege, much less prove, that during this time period, no black persons served on any juries in cases involving these prosecutors. Lockett’s pre-Batson-Swain claim is therefore without merit.

2. Case 2

The trial involving the murder of Geraldine Calhoun occurred in May, 1986, shortly after the Batson decision was rendered. In Case 2, the trial judge overruled objections by Lockett’s counsel to the use of peremptory challenges by the prosecution to strike several blacks from the jury venire. The result of such challenges is that Lockett was tried and convicted by an all-white jury. Lockett challenges the race-neutral reasons given by the prosecution. Lockett also asserts that the trial judge imposed additional criteria, not required by Batson, in determining that the peremptory challenges by the prosecution were used in a racially discriminatory manner.

The State asserts that the finding of no discrimination by the trial judge is a finding of fact which this Court must presume to be correct. Because the trial judge concluded that the prosecution did not exercise its peremptory challenges on the basis of race, the State asserts that Lockett is not entitled to an evidentiary hearing on this claim.

The United States Supreme Court has recently commented on Batson and its progeny in the context of a habeas proceeding:

Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. ... The second step of this process does not demand an explanation that is persuasive, or even plausible. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”

Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 1770-1771, 131 L.Ed.2d 834 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) (plurality opinion); id. at 374, 111 S.Ct. at 1874 (O’Connor, j., concurring in judgment)). The finding required by step 3 is a factual finding which must be “presumed to be correct, and may be set aside, absent procedural error, only if [it is] ‘not fairly supported by the record.’ ” Purkett, 514 U.S. at 769, 115 S.Ct. at 1771 (quoting 28 U.S.a § 2254(d)(8)).

The Court finds that Lockett has failed to show that the decision by the trial judge was not fairly supported by the record. The Court further finds that the factual findings made by the trial judge, and accepted by the Mississippi Supreme Court, with regard to each of the prosecution’s proffered reasons for striking the black jurors in Case 2 are presumed to be correct. In fact, Lockett does not seriously challenge those stated reasons. Rather, Lockett’s challenge seems to be aimed at the language used by the trial judge in explaining his ruling on this issue, rather than the proffered reasons themselves. The Mississippi Supreme Court addressed this entire issue at length and included the entire commentary of the trial judge in its decision. Lockett, 517 So.2d at 1348-53. The Court agrees with the decision of the Mississippi Supreme Court that the trial judge conducted a proper Batson inquiry, and that his factual findings that jurors were not excluded on the basis of their race must be upheld. Id. at 1353.

Ground Four: The introduction throughout both phases of petitioner’s trials of evidence and argument concerning the other murder deprived petitioner of his rights under the Fourteenth Amendment to the United States Constitution.

In each of Lockett’s trials, the state court allowed evidence concerning the murder of the spouse to be admitted into evidence. Thus, in Case 1 involving the murder of John Calhoun, evidence of the murder of Geraldine Calhoun, for which Lockett had not yet been convicted, was admitted into evidence “as an implied admission of guilt and ... to establish malice aforethought and to negate the proposition that the first killing took place in self defense as a result of accident or misfortune or under circumstances amounting to manslaughter.” Lockett, 517 So.2d at 1330. In Case 2 involving the murder of Geraldine Calhoun, evidence of the murder of John Calhoun, for which Lockett had been convicted, was admitted into evidence, although the fact of his conviction for such murder was excluded. R2 at 408. The trial judge concluded:

The ruling of the Court is that the evidence of the first murder, in my judgment, is clearly admissible as a showing of motive and intent if it is true. I am not judging whether it is true, but if it is proved, it could tend to show motive and intent and it could also be necessary for the jury to have some comprehensible understanding of the rest of the testimony in the case____ I think for those three reasons: it tends to show potential motive; it tends to show intent; and it tends to be necessary to give the jury an accurate view of the entirety of the evidence or a reasonable view of any of the evidence; it should be admissible.

R2 at 413-14.

Lockett asserts that the trial judges in both trials erred in admitting such evidence under the motive exception to Rule 404(b) of the Mississippi Rules of Evidence. Lockett also asserts that neither judge weighed the probative value of the evidence against its possible prejudicial effect as required by Rule 403 of the Mississippi Rules of Evidence. Such errors, according to Lockett, rendered both trials fundamentally unfair and denied him due process of law.

The State asserts that the trial courts and the Mississippi Supreme Court properly applied state law to admit the challenged evidenee. Furthermore, the State argues that even if the admission of such evidence violates state law, Lockett is not entitled to habeas relief because no federal constitutional violation occurred.

The Supreme Court has continuously held that “ ‘federal habeas corpus relief does not lie for errors of state law.’ ” Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990)); see also Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874-875, 79 L.Ed.2d 29 (1984) (concluding that “[a] federal court may not issue the writ on the basis of a perceived error of state law”). Federal courts hold no supervisory power over state judicial proceedings, and federal habeas corpus relief is appropriate only when a conviction has been obtained in violation of federal law or a specific right protected by the United States Constitution. Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). When considering a habeas corpus petition, a federal court reviewing state evidentiary rulings does not sit as a super state supreme court to review error under state law. Bridge v. Lynaugh, 838 F.2d 770, 772 (5th Cir.1988).

Because admissibility of evidence is a matter of state law, only a contention that the admission of the evidence rendered the trial fundamentally unfair or that it violated a specific constitutional right will be considered in a federal collateral proceeding. Edwards v. Butler, 882 F.2d 160, 164 (5th Cir.1989); Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir.1985) (citing Meyer v. Estelle, 621 F.2d 769, 771 (5th Cir.1980)). In determining whether the alleged erroneous admission of prejudicial evidence is so fundamentally unfair as to justify habeas relief, this Court must determine whether the evidence is material in the sense of a crucial, critical, highly significant factor in the context of the entire trial. Thomas v. Lynaugh, 812 F.2d 225, 230 (5th Cir.), cert, denied, 484 U.S. 842, 108 S.Ct. 132, 98 L.Ed.2d 89 (1987); Anderson v. Maggio, 555 F.2d 447, 451 (5th Cir.1977).

The Court finds that the decision of • each trial judge to admit the challenged evidence in each case did not violate Rule 404(b) of the Mississippi Rules of Evidence, as the murder of each of the Calhouns was evidence of motive to kill the other. Specifically, with regard to the murder of John Calhoun, the state court concluded as follows:

We agree with the State’s contention that the evidence of Mrs. Calhoun’s murder by Lockett was so interrelated and interconnected in time of Mr. Calhoun’s killing as to constitute a single or interconnected transaction, a basis for admissibility specifically noted in the Comments to Rule 404(b).... Furthermore, the killing of Mrs. Calhoun was clearly motivated by Lockett’s desire to effect a successful escape from his murder of Mr. Calhoun. Thus, the mention of her fate was relevant to establish an unlawful motive in the killing of her husband.

Lockett, 517 So.2d at 1331.

With regard to the murder of Geraldine Calhoun, the state court found that the evidence of motive was even stronger than in the first case:

Mrs. Calhoun was present when John Calhoun was shot, and she was forced to assist Lockett in robbing her husband’s body. Lockett’s own statements suggest he told Mrs. Calhoun she would have to die because she witnessed the crime and she knew who he was. Mrs. Calhoun was taken from her home and killed within a very short period following her husband’s death.

Lockett, 517 So.2d at 1354-55. In Case 2, as it had concluded in Case 1, the Mississippi Supreme Court concluded that the murder of John Calhoun was “interrelated and inseparable” from the murder of Geraldine Calhoun, and the evidence of John Calhoun’s murder was relevant to Lockett’s motive for murdering Geraldine Calhoun. Id, at 1355.

The Court agrees with the state court that the challenged evidence was admissible in each case to show motive and as part of an interconnected transaction. See Ballenger v. State, 667 So.2d 1242, 1257 (Miss.1995) (concluding that “[e]videnee of other crimes ... is also admissible in order to tell the complete story so as not to confuse the jury”), cert, denied, — U.S. -, 116 S.Ct. 2565, 135 L.Ed.2d 1082 (1996). Given the facts of these cases, it would have been difficult, if not impossible, to explain the facts of either murder without mentioning the other murder. The Court therefore concludes that the state court trial judges did not err in admitting the challenged evidence of each of the murders in the respective cases.

Alternatively, even if it was error for the respective trial judges to have admitted the challenged evidence of the other murder, the Court concludes that admission of the evidence was not fundamentally unfair and did not violate any specific constitutional right. As noted previously, the evidence presented against Lockett overwhelmingly proved his guilt beyond a reasonable doubt. Both murder weapons, which had been stolen in earlier community burglaries, were found in Lockett’s room. John Calhoun’s credit cards were also found in the house where Lockett lived. Furthermore, Lockett, confessed to both crimes, describing each in great detail. Faced with such evidence, the Court finds that if it was error to admit the evidence of the other murder in the respective cases, such error was harmless. See infra at 241 for a detailed discussion of harmless error review of “constitutional error of the trial type.”

Ground Five: The stacking of aggravating circum