Full opinion text
KANNE, Circuit Judge. During the early morning hours of February 14, 1980, the body of Cheryl Block, the girlfriend of Petitioner, Charles Silagy, and that of Anne Budde-Waters were discovered in two separate locations in Vermillion County, Illinois. Each had been stabbed repeatedly and had died as a result of massive hemorrhaging caused by those stab wounds. In a confession made to the police several days later, Silagy stated that he and Miss Block had been in an argument as they were driving from a local night club to another bar. Silagy recounted that he began to choke Miss Block during the course of this argument. He continued: My truck done a spin-around, and killed itself, and I shut it off and started cho-kin’ her some more, and kept chokin’ her and a car come up from the south, and so I acted like we was makin’ out, and the car was all clear, and I commenced cho-kin’ her with my left hand, and then I decided I didn’t have enough room ... so I fought with the door for a little bit, and I got it open from outside, ... because it will not open from the inside. Had to crank the window down and all this time I still got a hold of her throat. And chokin’ her. And so I throwed her out on the ground and I got outta the truck, and I started a-stompin’ on her and jum-pin’ up and down, and on her head, and then I drug her across the road, and she was still breathin’, so I took out my pocket knife and opened it and pulled her coat and blouse away, and stabbed her approximately five or six times in the chest on the left-hand side and then I left her lay there, and went back and got into my truck and left. After that had occurred, Petitioner went back to the apartment which he shared with Miss Block and Miss Budde-Waters to wash his hands and face. Shortly thereafter, Miss Budde-Waters arrived back at the apartment and refused to leave. As a response, Petitioner stated that he: throwed her over toward the TV, ... and I, ... throwed her down, and her head hit the coffee table, and I went over, and kicked her a couple o’ times in the head. And then I proceeded to go to a drawer, to where ... the big knives and butcher knives and utensils were kept.... And picked me out a knife that I knew would not bend, and I went back over and snatched her blouse on the left side and yanked it back, and stabbed her four times continuously in the chest. These confessions led to Petitioner’s prosecution and conviction for these murders. The same Illinois jury which found him guilty subsequently sentenced him to death under the provisions of the Illinois death penalty statute, Ill.Ann.Stat. eh. 38, ¶ 9 — 1(d) (Smith Hurd 1979). The Supreme Court of Illinois affirmed Petitioner’s conviction and sentence. People v. Silagy, 101 Ill.2d 147, 77 Ill.Dec. 792, 461 N.E.2d 415, cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). Silagy subsequently filed a petition for post-conviction relief which was dismissed by the trial court. This dismissal was affirmed by the Illinois Supreme Court in People v. Silagy, 116 Ill.2d 357, 107 Ill.Dec. 677, 507 N.E.2d 830, cert. denied, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987). Thereafter, he filed a petition for rehearing in the United States Supreme Court. This petition was denied. Silagy v. Illinois, 484 U.S. 972, 108 S.Ct. 476, 98 L.Ed.2d 413 (1987). In November of 1988, Silagy filed a petition for writ of habeas corpus in the United States District Court for the Central District of Illinois. In this petition, he raised various issues as to the propriety of both his conviction and sentence. The district court denied Petitioner’s challenges to his conviction, but issued a writ to vacate the sentence of death based on its conclusion that the Illinois death penalty statute was violative of the sixth, eighth and fourteenth amendments. United States ex rel. Silagy v. Peters, 713 F.Supp. 1246 (C.D.Ill.1989). Both Silagy and the State appeal from this final decision. I. The primary issue which we must address is the constitutionality of the Illinois death penalty statute. The district court’s conclusion that the Illinois death penalty statute is unconstitutional was based almost exclusively on the rationale of the dissenting opinion in People ex rel. Carey v. Cousins, 77 Ill.2d 531, 34 Ill.Dec. 137, 397 N.E.2d 809 (1979), cert. denied, 445 U.S. 953, 100 S.Ct. 1603, 63 L.Ed.2d 788 (1980). That dissent concluded that the Illinois statute’s grant of prosecutorial discretion under § 9 — 1(d) to request a separate sentencing hearing was violative of the eighth amendment’s guarantee against the “arbitrary and capricious” imposition of the death penalty. In addition, the dissent concluded, although without much explication, that the statute’s failure to provide pretrial notice to an accused that the death penalty will be sought in his case was violative of basic notions of due process. Id. 34 Ill.Dec. at 151-52, 397 N.E.2d at 823-24. The district court adopted these conclusions as its own in its final order. Although not expressly stated in its holding, it appears that the district court further concluded that this lack of pretrial notice also implicates the sixth amendment right to “effective assistance of counsel.” Finally, while not a basis for the district court’s decision, Petitioner argues that the Illinois statute is unconstitutional in that the impact of its provisions is to raise a rebuttable presumption in favor of the imposition of the death penalty in violation of the eighth amendment. We must also address various issues which Silagy raises in support of his prayer that this court reverse his conviction. We will discuss both the factual bases and the substance of those issues as they arise in the course of our review. A. FACIAL ATTACK ON ILLINOIS STATUTE Petitioner’s attack on the constitutionality of the Illinois statute is both “facial” and “as applied.” With regard to the argument that the Illinois statute is unconstitutional on its face, Petitioner’s shotgun approach raises three arguments of consequence. First, he argues that the discretion afforded the prosecutor under § 9-l(d) of the statute in deciding whether to seek the death penalty in a particular case violates the eighth amendment’s guarantee against “cruel and unusual punishment.” Second, Petitioner argues that the Illinois statute’s failure to notify the accused prior to trial that the death penalty will be sought in his case violates both the sixth amendment right to effective assistance of counsel and the fourteenth amendment right to due process. Finally, Petitioner argues that the Illinois statute is unconstitutional in that the practical effect of its § 9-l(g) is to establish a rebuttable presumption in favor of the death penalty in violation of the eighth amendment. 1. Prosecutorial Discretion under § 9-l(d) Petitioner’s initial eighth amendment concern focuses on the discretion afforded Illinois prosecutors under § 9-l(d) of the statute to request a separate sentencing hearing to consider the potential imposition of a death sentence for a convicted defendant. Neither § 9-l(d), nor any other section of the Illinois death penalty statute, provide for express legislative guidelines to assist the prosecutor in determining under what circumstances to request a separate sentencing hearing. Moreover, under the Illinois scheme a prosecutor need not make such a request until a conviction has been obtained. Categorizing this prosecutorial discretion as within the realm of post-conviction sentencing discretion which served as the focus of the Court’s concern in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and its progeny, Petitioner argues that the failure of the Illinois statute to provide legislative guidelines to assist the prosecutor in exercising this discretion violates the eighth amendment. We do not agree. In assessing Petitioner’s claim, it is necessary to examine the Supreme Court’s eighth amendment jurisprudence and, in so doing, focus on the Court’s concerns as they are presented in those decisions. The Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), serves as the foundation of our analysis. The issue presented to the Court in Furman was whether “the imposition and carrying out of the death penalty in [the cases before the court] constitute^] cruel and unusual punishment in violation of the eighth and fourteenth amendments.” Id. at 239, 92 S.Ct. at 2727. While this issue was not resolved by the various concurring opinions presented in that decision, the Court later recognized in Gregg v. Georgia, supra, that the residue of those concurring opinions was that, because of the uniqueness of the death penalty as a form of sentence, it could not be imposed under circumstances which presented a substantial risk that it would be inflicted in an “arbitrary or capricious manner.” 428 U.S. at 188, 96 S.Ct. at 2932. The Court further noted that the mandate of Furman was that any discretion afforded a sentencing body in imposing the death penalty must be narrowly channeled so as to minimize the risk of arbitrariness and capriciousness. Id. at 189, 96 S.Ct. at 2932. This mandate has guided the Court’s subsequent death penalty jurisprudence. Four years after the decision in Fur-man, the Court considered the eighth amendment issues posed by five post-Fur-man death penalty statutes. In each of these cases, the Court’s decision as to whether the statute was unconstitutional turned on the nature of the “sentencing procedures” prescribed by the particular statute and the extent to which those procedures focused the sentencing authority’s attention on the particularized nature of the crime and the particularized characteristics of each defendant. The first of these cases was Gregg v. Georgia, supra, in which the Court upheld the constitutionality of the Georgia death penalty statute. Under the scheme as it existed in Georgia in 1976, the class of murderers eligible for capital punishment was narrowed through the statute’s specification of ten statutory aggravating circumstances, one of which must have been determined by the jury to exist beyond a reasonable doubt before a death sentence could be imposed. Georgia Code Ann. § 27-2534.1 (Supp.1975). In addition, the jury was authorized to consider any appropriate aggravating or mitigating circumstances. § 27-2534.1(b). Believing that these procedural requirements would assure that the jury’s attention would be focused “on the particularized nature of the crime and the particularized characteristics of the individual defendant”, the Court concluded that the jury’s discretion was adequately channeled and, more importantly, that the concerns which prompted the Court’s decision in Furman were not present under the Georgia statute. Gregg, 428 U.S. at 206-07, 96 S.Ct. at 2941. The Court’s decision upholding the Texas death penalty statute in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), was premised on the same fundamental concern. Under the capital sentencing scheme in force in Texas, once a defendant had been convicted of a capital crime the sentencing procedure required that the jury be presented with three questions in a post-conviction sentencing hearing. Tex. Code Crim.Proc., Art. 37.071 (Supp.1975-76). If the jury found that the state had proved beyond a reasonable doubt that the answer to each of the three questions was “yes”, the death penalty was to be imposed. Art. 37.071(c). Thus, the issue presented to the Court was whether the jury, in answering these three questions, was permitted to consider all of the mitigating and aggravating circumstances surrounding the defendant and his crime. Concluding that the Texas capital sentencing procedure “guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence”, the Court determined that the Texas statute was not viola-tive of the eighth and fourteenth amendments. Jurek, 428 U.S. at 274, 96 S.Ct. at 2957-58. In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), the Court upheld the constitutionality of the Florida capital sentencing procedure. Under the Florida statute, once a defendant was found guilty of a capital offense, a separate evidentiary hearing would be conducted before the jury to determine whether the death penalty should be imposed. Based upon its consideration of the mitigating and aggravating evidence presented during this evidentiary hearing, the jury would render an “advisory opinion” as to whether the death penalty should be imposed. Fla.Stat.Ann. §§ 921.141(2)(b) and (c) (Supp.1976-77). The final decision regarding the imposition of the death sentence in each case would be made by the trial judge, who could impose the death sentence only after making a written finding that the mitigating circumstances were insufficient to outweigh the aggravating circumstances. § 921.141(3). The Court found that the procedures employed in Florida satisfied the constitutional deficiencies identified in Furman, stating: [t]he sentencing authority in Florida, the trial judge, is directed to weigh eight aggravating circumstances against seven mitigating factors to determine whether the death penalty shall be imposed. This determination requires the trial judge to focus on the circumstances of the crime and the character of the individual defendant. Proffitt, 428 U.S. at 251, 96 S.Ct. at 2966. A recent pronouncement on eighth amendment concerns in the death penalty context came in Penry v. Lynaugh, 492 U.S. —, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In ruling that the Texas death penalty statute, as applied to the facts of that case, was unconstitutional in prohibiting the jury from giving effect to all of the mitigating evidence surrounding the individual defendant, the Court reaffirmed its reliance on the principles established in Furman and its progeny. The Court stated: [i]n order to ensure ‘reliability in the determination that death is the appropriate punishment in a specific case’, Woodson, 428 U.S. at 305, 96 S.Ct. at 2991, the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime. Id. at —, 109 S.Ct. at 2951. The fundamental issue posed by Silagy in this context, therefore, is whether the post-conviction discretion exercised by a prosecutor under § 9-l(d) of the Illinois statute properly falls within that category of “sentencing discretion” which has served as the focus of the Court’s concern. We do not believe that it does. The concern of the Court has been to limit and channel the discretion of the sentencing body — i.e., the judge or the jury — which actually imposes the sentence in a given case. See Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (In discussing Gregg and subsequent cases, the Court focused its attention on the extent to which the state statutory systems directed and limited the jury’s discretion). A prosecutor’s decision under § 9-l(d) of the Illinois statute to commence or forego a death sentence hearing is not a decision to “impose” the death sentence. Rather, the prosecutor’s role is limited to that of initiating the proceedings. The concerns addressed by the Court in Furman and its progeny with regard to limiting the discretion of the “sentencing authority” simply do not come into play under the Illinois statute until after the prosecutor has requested a separate sentencing hearing and the formal sentencing procedures have commenced. As such, the fact that the Illinois statute does not provide for legislative guidelines to assist the prosecutor in exercising his discretion does not implicate the Court’s eighth amendment concerns. Petitioner argues, however, that the fact that Illinois prosecutors are permitted to exercise this discretion “post-conviction” differentiates the Illinois statute from those that have been considered by the Court and, as a consequence, renders it violative of the eighth and fourteenth amendments. We agree that the Illinois statute is unique from other state’s statutes that have been addressed in this respect, but we do not believe that this uniqueness is of constitutional dimension. An Illinois prosecutor exercises the same fundamental discretionary authority under § 9-l(d) as do prosecutors in other states that have death penalty statutes. Specifically, the prosecutor determines in each case whether the crime committed by the defendant makes him eligible for a capital sentence. Under the Illinois statute, this determination necessarily focuses the prosecutor’s attention on § 9-l(b) of the statute which lists eight “aggravating factors” pertaining to the crime, one of which must be proved beyond a reasonable doubt by the State before the imposition of the death sentence may even be considered by the jury. This is substantially the same decision which is presented to a prosecutor who, under the Georgia death penalty statute for example, must determine — pretrial at the indictment stage — whether a capital crime will be charged. Under the Georgia scheme as it existed at the time of Gregg, the prosecutor was guided by a list of six categories of crimes for which the death penalty could be imposed. In deciding whether or not to charge a capital crime, a Georgia prosecutor necessarily considered whether any of those six crimes could be proved beyond a reasonable doubt to the jury. Thus, the two schemes are substantially the same in that the prosecutor’s decision to seek the death penalty is guided in each instance by his assessment of the possibility of proving a specific element of the crime beyond a reasonable doubt. Based on this fact, we fail to see how the timing of this prosecutorial decision implicates eighth amendment concerns. Indeed, rather than jeopardizing the integrity of the death sentencing procedure, we believe that the Illinois statute’s grant of post-conviction discretion may enhance the quality of prosecutorial decisions in this regard in that it permits the prosecutor to weigh all of the evidence presented in the guilt/innocence stage of the proceedings in his assessment of the propriety of seeking the death penalty in that particular case. Thus, like the sentencing authority’s ultimate decision to impose the death penalty, the prosecutor’s preliminary decision to seek the death sentence in a particular case will be guided not only by the nature of the crime itself, but also by any individualized characteristics of the defendant which may come out during the course of the trial. For all of these reasons, we reject Petitioner’s eighth amendment challenge to the constitutionality of the Illinois death penalty statute. 2. Lack of Pretrial Notice Petitioner’s sixth amendment claim focuses on the right to “effective assistance of counsel” and the extent to which the Illinois death penalty statute protects that right. In this regard, the Supreme Court has recognized that the right to “effective assistance of counsel” protects a criminal defendant not only from “actual ineffectiveness” of counsel, but also from circumstances in which prejudice to a defense counsel’s ability to effectively represent may be presumed. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our task is to determine whether the lack of a pretrial notice provision in the Illinois statute interferes with defense counsel’s ability to provide effective representation to such a degree that ineffective assistance can be presumed. We do not believe that it does. Our resolution of this issue follows from the Supreme Court’s decision in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the Court was asked to consider, in the absence of evidence of actual ineffectiveness on the part of trial counsel, when state interference with defense counsel’s ability to conduct an effective defense may be presumed to be violative of the sixth amendment. The Court concluded that in certain circumstances a presumption of ineffectiveness may arise. See Henderson v. Thieret, 859 F.2d 492, 499 (7th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1648, 104 L.Ed.2d 163 (1989); United States v. Moreno Morales, 815 F.2d 725, 752 & n. 33 (1st Cir.), cert. denied, 484 U.S. 966, 108 S.Ct. 458, 98 L.Ed.2d 397 (1987). Specifically, the Court noted that a presumption of ineffectiveness arises when there is “a complete denial of counsel,” or if “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing." Cronic, 466 U.S. at 659, 104 S.Ct. at 2047. Petitioner’s claim must necessarily proceed under the third of the Court’s recognized scenarios — i.e., “when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate....” Id. at 659-60, 104 S.Ct. at 2047. We do not believe that pretrial knowledge regarding the certainty of a request for the death penalty is necessary to protect this sixth amendment concern. In an attempt to focus Silagy’s argument in this regard and properly frame the issue, it is necessary to point out that defense counsel is not completely without notice as to the possibility of a death sentence under the Illinois death penalty scheme. On the contrary, the fact that a particular defendant is eligible for a death sentence and the fact that the State may choose to seek a death sentence in that defendant’s case are made known to defense attorneys as early as the filing of the indictment. Moreover, defense counsel is reminded of this possibility up through the time of voir dire. In light of the existence of this “constructive notice”, the issue is not whether an absolute lack of notice violates the sixth amendment’s guarantee of effective assistance of counsel. Rather, we must determine to what extent the sixth amendment’s guarantee of effective assistance of counsel mandates that defense counsel know to a certainty prior to trial that the State intends to pursue the death penalty in a given ease. In our discussion, we refer to this latter type of knowledge as “certain pretrial knowledge.” Certain pretrial knowledge is not required to protect a defendant’s sixth amendment rights. This conclusion is not premised upon an insensitive application of the rather amorphous principles surrounding what constitutes “effective assistance of counsel.” Rather, we note, as did the Court in Cronic, 466 U.S. at 658, 104 S.Ct. at 2046, that the sixth amendment’s guarantee of effective assistance of counsel is not valued for its own sake, but rather for an accused individual’s ability to receive a fair trial. See Hammonds v. Newsome, 816 F.2d 611, 613 (11th Cir.1987). We do not believe that Petitioner received an unfair trial. Nor do we agree with Silagy’s assertion that the only circumstance under which a death-eligible defendant can receive a fair trial is when he knows to a certainty from the outset that the State intends to seek the death penalty in his case. Petitioner’s argument that he received an unfair trial is premised primarily on his decision to pursue the insanity defense and the nature of the evidence which came into the trial as a result of that decision. Specifically, Silagy argues that if he had known to a certainty that the State intended to seek the death penalty in his case, he may have foregone the insanity defense at trial and, in so doing, avoided presenting to the jury certain inflammatory evidence necessary for that defense. Petitioner's argument, however, fails to comport with reality. Although not dispositive of our decision today, we note initially that the circumstances surrounding Petitioner's crime left him with no practical choice but to plead insanity. The record shows that Petitioner voluntarily confessed to the murder of both victims shortly after the commission of the crimes. Thus, defense counsel’s argument that he might have foregone the insanity defense had he had certain pretrial knowledge that the State would pursue the death penalty is without merit. More fundamental to Petitioner’s argument, however, is the claim that damaging evidence was presented during trial which he would have liked to have kept from the jury’s consideration during the sentencing phase. Silagy’s argument, however, fails to take cognizance of the fact that this evidence would have been introduced during the sentencing phase regardless of whether it was admitted during the trial itself. Thus, Petitioner’s lack of certain pretrial knowledge did not prejudice him in his presentation of his defense at trial. On a more encompassing level, we hesitate to conclude that the assurance of a fair trial for all death eligible defendants mandates that the accused be given “certain pretrial knowledge” that the State intends to seek the death penalty in his case. Simply put, such knowledge is not essential for the purposes of the sixth amendment. Regardless of what type of notice is given an accused that the state intends to seek the death penalty in his case, the fact remains that the State’s ultimate (i.e., binding) decision to pursue or forego the death penalty is not made until after the trial. Even in those states in which a prosecutor is required to indicate in pretrial pleadings that the state intends to seek the death penalty, the nature of the evidence presented at trial may convince the prosecutor that the imposition of the death penalty would not be appropriate in that case. Under such a circumstance, the prosecutor must be able to withdraw his earlier request for the imposition of the death penalty. Under that factual scenario, would a petitioner then be able to raise a sixth amendment claim arguing that if he had known that the state was not going to pursue the death penalty in his case, he may have opted for a different trial strategy? Or, to put it differently, if “certain pretrial knowledge” is constitutionally mandated under the sixth amendment, how could a prosecutor who has indicated that the State will pursue the death penalty in a particular case subsequently withdraw that request without creating an automatic appealable issue under the sixth amendment? Under the rule which Petitioner proposes, we do not believe that he could. In addition to creating this untenable constitutional dilemma for prosecutors in capital cases, we find such a rule unwarranted in that it would only serve to restrict the otherwise informed manner in which a prosecutor under the Illinois statute is permitted to analyze the evidence presented at trial before deciding whether it may be appropriate to pursue the death penalty in a particular case. Were we to adopt a rule mandating “certain pretrial knowledge”, prosecutors would be required to commit one way or another on the issue of whether to pursue the death penalty without the added insight into the individual characteristics of the defendant and the circumstances of the crime which the trial provides. For these reasons, we reject Si-lagy’s argument that the sixth amendment mandates that in all instances “certain pretrial knowledge” be afforded to the accused. Petitioner’s fourteenth amendment argument, like his sixth amendment claim, focuses on the failure of the Illinois statute to grant a defendant pretrial notice that the State intends to seek the death penalty in his case. This aspect of Silagy’s claim, however, asserts that this failure constitutes a deprivation of procedural due process. In that the Illinois statute does provide actual notice to a death-eligible defendant that the State intends to seek the death penalty and, thereafter, mandates that a separate sentencing hearing be conducted to determine the propriety of such a constitutional deprivation, we conclude that the Illinois statute provides for all the process which is due under the fourteenth amendment. The sentencing authority’s decision to impose a sentence of death under the Illinois statute clearly requires notice to the accused. As was noted in a different context by the Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), a “fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (citations omitted); see also Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner). The question presented by Petitioner’s fourteenth amendment claim is whether procedural due process mandates that the accused be given pretrial notice of a State’s intent to seek the death penalty in a particular case. We do not believe that it does. The Supreme Court has recognized that, “ ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’” Mathews, 424 U.S. at 334, 96 S.Ct. at 902 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In determining what due process a particular situation may demand, the Court has indicated that three factors must be considered: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional safeguards; and, (3) the government’s interest. Id. 424 U.S. at 335, 96 S.Ct. at 903. Obviously, the private interest at stake under Petitioner’s claim, and that of any other death-eligible defendant, is of the greatest magnitude. In light of the notice and procedural safeguards which are provided under the Illinois statute, however, we do not believe that any risk of erroneous deprivation which might exist mandates the adoption of Petitioner’s proposed additional procedural safeguard. Nor do we believe that the imposition of such an additional procedural safeguard would serve to enhance the already ample opportunity which a death-eligible defendant is given to respond to the State’s decision to seek the death penalty via the statutorily-mandated death sentencing hearing. The State action which must be guided by procedural due process is the ultimate decision of the jury (or judge) to impose the sentence of death. For due process purposes, we distinguish this decision from that made by the prosecutor to seek or forego the death penalty hearing in that, unlike the decision of the judge or jury to impose a sentence of death, a prosecutor's decision to seek the death penalty in a particular case does not constitute a deprivation of life, liberty or property. The deprivation occurs, if at all, only through the action of the judge or jury at the con-elusion of the statutorily-mandated sentencing hearing. The sentencing hearing mandated by the Illinois statute, we conclude, provides for all the procedure which is due under the fourteenth amendment. Under the Illinois statute, if the State wishes to pursue a death penalty in a particular case it must request a separate sentencing hearing which will be conducted either before the jury that determined the defendant’s guilt, a separately impanelled jury, or the court. § 9-l(d). This sentencing hearing is conducted for the purpose of permitting the sentencing authority to determine the existence of any aggravating or mitigating circumstances relating to the individual defendant or crime and to weigh those factors in determining whether the defendant in question should receive the sentence of death. §§ 9-l(c) and (g). Information relevant to any non-statutory aggravating factors or any mitigating factors presented in subsection (c) may be presented by the State or the defendant at the sentencing hearing, regardless of any evi-dentiary obstacles which might obstruct the admission of that information at trial. § 9-l(e). Finally, the Illinois statute provides for automatic review of any conviction and sentence of death by the Illinois Supreme Court. In sum, the defendant is notified, albeit post-conviction, that the State intends to seek the death penalty in his case. Thereafter, a series of procedural safeguards ensure that the defendant is given a meaningful opportunity to respond to the State’s request for the imposition of the death penalty. Based on the notice and opportunity to respond which is afforded, we reject Petitioner’s claim that the Illinois statute violates the due process concerns of the fourteenth amendment. 3. Rebuttable Presumption in Favor of Death Penalty As yet another basis for finding the Illinois statute unconstitutional on its face, Petitioner argues that the impact of § 9-l(g) of the Illinois statute is to create a mandatory rebuttable presumption in favor of the death penalty which impermissibly shifts the burden of persuasion to the capital defendant to show that the death penalty is inappropriate in his case. Section 9-l(g) of the statute spells out for the sentencing authority the results which will obtain depending on the balance struck between the aggravating and mitigating factors which are presented during the course of the sentencing hearing. It provides in pertinent part: If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death. Unless the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence the court shall sentence the defendant to a term of imprisonment.... This statutory provision does not place an unconstitutional burden of persuasion on the defendant in a sentencing hearing to prove the inappropriateness of the death sentence in his or her case. Rather, this language in a constitutional way guides the jury (or judge) in determining under what circumstances the death penalty should be imposed. As the Court stated in Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), a State’s imposition of the death penalty does not comport with the guarantees of the eighth amendment unless the sentencing authority considers “the character and record of the individual offender and the circumstances of the particular offense. ...” The Illinois statute’s mandate that the jury (or judge) consider any mitigating and aggravating circumstances regarding the individual defendant and the particular crime serves to ensure that these eighth amendment rights are observed. Section 9-l(g), simply provides a balance upon which the sentencing authority can place the various mitigating and aggravating circumstances to determine whether the imposition of the death penalty is appropriate in a particular case. Under § 9-l(g), the prosecution bears the initial burden of persuasion in the balancing stage of the sentencing proceeding. As the Illinois Supreme Court stated in the recent case of People v. Bean, — Ill.2d — (April 18, 1990, No. 65062), “the State is the movant, the party seeking the death penalty, and so it bears the primary burden of persuading the jury that, as the statute states, there are no mitigating factors sufficient to preclude the sentencer from imposing the sentence of death for which the defendant is eligible.” — Ill.2d at —, slip op. at 52. The Illinois Supreme Court went on to say that because the sentencing determination is “a process of balancing intangibles, not of proving facts, it is improper to speak of defendants as having a ‘burden.’ After the State as movant has attempted to persuade the jury the death sentence should be imposed, a defendant may attempt to dissuade the jury from doing so. Whether the defendant attempts to dissuade the jury, whether he decides to take up this ‘burden,’ is up to him; the law does not require him to take it up.” Id. Thus, we agree with the Illinois Supreme Court that where a defendant attempts to persuade the jury that the death penalty is inappropriate in his case, “a burden of persuasion is placed on the defendant by the sentencing statute_” — Ill.2d at —, slip op. at 51. However, we also agree with the Illinois Supreme Court that the imposition of such a burden of persuasion on a defendant “is constitutional because at this point in the hearing the prosecution has already proven beyond a reasonable doubt that a statutory aggravating factor exists making the defendant eligible for the death penalty [citation omitted], and the jury is now weighing aggravating and mitigating factors presented by both the State and defendant.” Id. As the Illinois Supreme Court noted, this kind of capital sentencing procedure which specifies a class of murderers who are eligible for the death penalty and provides for consideration of mitigating factors unique to the offense and offender has been approved by the Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); see also, Walton v. Arizona, — U.S. -, -, 110 S.Ct. 3047, -, 111 L.Ed.2d 511 (1990) (“So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency”). A statutory scheme which calls for a particular body, such as the sentencing authority under § 9-l(g), to weigh various factors must guide that body as to the results which follow from a determination that one set of factors outweighs the other. If no such guidance were given, the weighing process itself would be rendered ineffective as a means of arriving at similar results in similar situations. For example, if a jury were asked to weigh various mitigating and aggravating circumstances in a particular defendant’s case, but were not given any guidance as to the sentence which must be imposed based upon the balance they strike between those competing considerations, there would be no means of preventing a jury from imposing a death sentence even in those situations in which the mitigating circumstances outweighed the aggravating circumstances. Certainly, such a statutory scheme would run afoul of the eighth amendment’s guarantee that the death penalty not be imposed in an “arbitrary or capricious” manner. By providing for a certain result based on the balance struck by the jury between the aggravating and mitigating circumstances, § 9-l(g) does not impose a burden of persuasion on the defendant. Rather, it serves to ensure that similar results will be achieved in similar circumstances while, at the same time, allowing the jury to consider the individual characteristics of the defendant and the particularized nature of the crime. For these reasons, we reject Petitioner’s argument that § 9-l(g) violates either the eighth or fourteenth amendments. In a closely related argument under the eighth amendment, Petitioner argues that the impact of § 9-l(g) is to preclude the sentencer from determining, based on the individual characteristics of the defendant and the unique circumstances of the crime, whether death is the appropriate penalty in his case. Specifically, Petitioner argues that § 9-l(g) denies the sentencer the choice not to impose the death penalty in certain circumstances. Arguments substantially similar to this aspect of Petitioner’s challenge to the Illinois statute were recently addressed and rejected by the Supreme Court in Blystone v. Pennsylvania, 495 U.S. —, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990) and Boyde v. California, 495 U.S. —, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). At issue in Blystone was the constitutionality of § 9711c(l)(iv) of the Pennsylvania death penalty statute. In pertinent part, that section provided, “[t]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance ... and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.” Bly-stone argued that this provision violated the eighth amendment’s guarantee of individualized sentencing in that it mandated a death sentence in certain circumstances and, in so doing, impermissibly precluded the jury from evaluating the weight to be afforded that aggravating circumstance. The California jury instruction at issue in Boyde provided, in pertinent part, “If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” The Supreme Court rejected the eighth amendment challenges to both of these statutes. Like Petitioner, the challengers in each of these cases argued that the effect of the statutory language was to create a mandatory presumption in favor of the death sentence which precluded the jury from assessing the propriety of the death sentence in each case. In rejecting this argument, the Court stated: [d]eath is not automatically imposed upon conviction for certain types of murder. It is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances. This is sufficient under Lockett and Pen-ry (footnote omitted). Blystone, 495 U.S. at —, 110 S.Ct. at 1082-83. As in Pennsylvania, a sentence of death is imposed in Illinois only after the sentencing authority determines that the aggravating circumstances outweigh the mitigating circumstances in the particular crime committed by the particular defendant. Accordingly, we reject Petitioner’s eighth amendment challenge to this aspect of the Illinois death penalty statute. Along with the preceding three challenges to the facial validity of the Illinois statute, Petitioner has raised two challenges which merit little discussion by this court. Initially, Petitioner argues that the Illinois death penalty statute is unconstitutional in that it fails to provide for ‘‘comparative proportionality review”. Some state death penalty statutes, particularly those modeled after the scheme in place in Georgia, require a reviewing court to determine to some degree whether a sentence is disproportionate to that which has been imposed in other similar cases. Pulley v. Hams, 465 U.S. 37, 44, 104 S.Ct. 871, 876, 79 L.Ed.2d 29 (1984). While recognizing that many states provide for proportionality review in their statutes, the Court in Pulley concluded that such a review is not constitutionally mandated. Id. at 45, 104 S.Ct. at 876. Rather, it is simply an “additional safeguard against arbitrarily imposed death sentences.... ” Id. at 50, 104 S.Ct. at 879. In that we do not believe that the remainder of the Illinois statute is lacking in procedural safeguards so as to mandate the addition of proportionality review, we reject Petitioner’s argument that proportionality review is constitutionally required. As a final challenge to the facial validity of the Illinois statute, Petitioner argues that it violates the eighth and fourteenth amendments in that it fails to provide a means of assuring that all aggravating circumstances relied upon by the sentencer are relevant or constitutionally permissible. In support of this argument, Petitioner raises the Supreme Court’s decision in Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Petitioner’s challenge, however, misapplies the holding of the Court in Zant. In upholding the petitioner’s sentence in Zant, the Court distinguished between the roles which “statutory” and “nonstatutory” aggravating circumstances play under the Georgia sentencing scheme. The Court stated: statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. Id. at 878, 103 S.Ct. at 2743 (footnote omitted). Petitioner’s challenge appears to focus on this latter class of aggravating circumstances — i.e., those “nonstatutory” aggravating circumstances which assist the sentencing authority in making an individualized decision at the “selection stage” of the sentencing hearing. With respect to these factors, the Illinois statute expressly states in § 9-l(c): [t]he court shall consider, or shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty. Aggravating factors may include but need not be limited to [the statutory aggravating factors] set forth in subsection (b) (emphasis added). Thus, contrary to Petitioner’s assertions, the jury’s discretion at the selection stage of the sentencing hearing is focused on that which is “relevant” to the task at hand. As the Court has stated: [w]e expect that sentencers will exercise their discretion in their own way and to the best of their ability. As long as that discretion is guided in a constitutionally adequate way (citation omitted), and as long as the decision is not so wholly arbitrary as to offend the Constitution, the eighth amendment cannot and should not demand more. Barclay v. Florida, 463 U.S. 939, 951-52, 103 S.Ct. 3418, 3425, 77 L.Ed.2d 1134 (1983). In light of this precedent and the extent to which the jury’s discretion is guided under the Illinois statute, we reject as meritless Silagy’s assertions to the contrary. B. AS APPLIED ATTACKS ON ILLINOIS STATUTE Petitioner’s arguments thus far have focused on the facial validity of the Illinois death penalty statute under the sixth, eighth, and fourteenth amendments. He also challenges the constitutionality of the statute as it has been applied in his case. 1. Admission into Testimony of “False Facts” The first of Silagy’s arguments in this regard focuses on the admission at trial of what Petitioner refers to as “false facts” regarding his tour of duty in Vietnam. Under the guise of a fourteenth amendment due process claim and an eighth amendment cruel and unusual punishment claim, Petitioner argues that the reliability of his sentence was undermined by the jury’s exposure to certain testimony regarding his activities in Vietnam which later turned out to be false. Before proceeding to address the merits of this claim, it is necessary to lay a factual foundation as to exactly what this information consisted of and, more importantly, how it came to be that this information was put before the jury. As a result of Petitioner’s stated intent to present the insanity defense at trial, three separate psychiatrists conducted psychiatric examinations of Petitioner and presented written reports to the court as to their findings. Two of these psychiatrists, Drs. Pugh and Traugott, concluded in their reports and testified at trial that Petitioner was not insane at the time of his offense. Dr. Ziporyn, the third psychiatrist, came to an opposite conclusion and testified at trial as to that finding. These findings, however, are not the focus of Petitioner’s due process argument. Rather, Petitioner focuses on the lies which he told Drs. Pugh and Traugott in his examinations and the extent to which this false information was presented to and, more importantly, relied upon by the jury in their decision to impose the sentence of death. The false information upon which Petitioner now premises this fourteenth amendment claim was presented to the jury in the following manner. In his pretrial interviews with both Drs. Pugh and Traugott, Silagy conveyed materially false information regarding the nature of his service while in Vietnam. Dr. Pugh’s written report to counsel and the court provides perhaps the most pronounced example of Petitioner’s falsifications. Reviewing Petitioner’s account of his Vietnam experience, Dr. Pugh wrote: He served a total of 19 months of combat duty in Vietnam. [ ...] In combat in Vietnam, he was exposed to a great deal of violence. He killed many of the enemy, both at a distance and close up. He says that on several occasions he killed people with knives, sometimes by cutting their heads off. He says he was captured by the enemy three times and was subjected to torture. He says that he was also subjected to interrogation by our side when he escaped from captivity because our intelligence was concerned that he might have given information to the enemy. He says that he also participated in torturing the enemy for the purpose of extracting information from their captives. He says that he participated in the MyLai massacre [sic] and talked with Lieutenant Calley shortly before that operation. Neither Dr. Pugh’s report nor that of Dr. Traugott, however, were admitted into evidence. Rather, at trial, these psychiatrists simply testified as to their conclusions concerning Silagy’s sanity. In that Petitioner’s challenge to this information is necessarily limited to the extent to which it was presented to the jury, we will focus our attention on that issue. During the guilt/innocence phase of the trial, each doctor was called to the stand to testify. As a witness for the defense, Dr. Ziporyn made no reference to Petitioner’s accounts of his experiences in Vietnam. The testimony of Drs. Pugh and Traugott, however, did briefly touch on the subject. As a witness for the prosecution, Dr. Trau-gott’s testimony regarding Petitioner’s accounts of his Vietnam experience was very limited. The extent to which Petitioner’s fabrications were presented to the jury on defense counsel’s cross-examination, however, was not so limited. Defense counsel specifically asked Dr. Traugott how Petitioner’s alleged military experience had entered into his diagnosis. Dr. Traugott responded: In several ways. There’s a history of alcohol abuse while he’s in the service. There’s a history of drug abuse.... [] another reference made to possible reactive psychosis in the Service. [ ... ] I think in looking at this man’s actions, how he was able to kill two women, that he was trained in the service of our country to kill people, and would have a reaction, some pattern of being around people who were killed. With regard to the trial testimony of Dr. Pugh, all references to Petitioner’s alleged acts of violence in Vietnam were the result of defense counsel’s cross examination. Indeed, only over the objection of the prosecutor did the following discourse take place: Q Now, turning specifically to talking about the unit in Viet Nam. He served 19 months in combat? A Yes. Mr. Fahey: I would object at this time. The Court: Overruled. Answer may stand. Proceed. Q Now, on your discussion with him of that tour of duty in Viet Nam, was there anything significant that you interpreted from that other than the situation telling us about transferring from the unit? Is there anything significant that you saw in that? A Yes. I felt that his exposure to violence in Viet Nam, as I reported it, was unusually protracted and severe. Most people did not serve more than a year in Viet Nam. And he told me he was captured three times and was tortured in the course of interrogation by the enemy, and that he participated in torturing the enemy who was captured. One time interrogated by intelligence on our side because they were afraid he had told the enemy things under torture. He had killed a number of enemy, sometimes at a distance, sometimes up close. He had killed them with knives; killed some by cutting their heads off. And ... (Intervening testimony is lost) Q ... sounded like he had an awful lot of exposure to violence that most people don’t have. And you thought that this was a significant factor in this psychological makeup? A Yes, I did. Somebody who has been exposed to violence of that sort may become quite callous to it, whereas it might never occur to someone who never has seen a murder or been threatened with murder. It is certainly something that would occur to somebody who had been repeatedly exposed to it, if they are under duress. This constituted the testimony regarding Vietnam presented at trial. In closing argument, the prosecution’s reference to Vietnam was limited. The prosecution stated, “Vietnam, we don’t know that much, but we know he had amnesia.” Again, however, defense counsel went to great lengths to discuss the subject. Defense counsel argued: You’ve heard about Mr. Silagy’s tour of duty in Vietnam at the age of eighteen. You’ve heard of violence associated with that — the combat duties, that he had and the experiences and length of that tour of duty. I believe it was Dr. Pugh who testified yesterday about that great exposure to violence, about 19 months that he served in combat. That he related killing people from close up, from far away.... Both of the individuals, both doctors Traugott and Pugh testified about the periods of what they termed as reactive psychosis, reactive psychosis which took place first in Vietnam and, second, in prison.... both Dr. Pugh and Dr. Traugott talked abot [sic] his Viet Nam experience. And I think Dr. Pugh said how protracted and severe the violence that Charles Silagy was exposed to was. And Dr. Pugh also testified as to how that conditioning gave him apparently a nonchalance, a lesser reluctance towards violence, how this conditioning through Viet Nam had added to his mental state. Thus, to the extent Petitioner’s own fabricated account of his experiences was referred to during the course of the guilt/innocence phase of the trial, it was primarily the result of defense counsel’s own doing. At the request of the prosecution, all of the evidence which had previously been admitted into the guilt/innocence phase was admitted into the sentencing hearing. At no point during the course of the sentencing hearing, however, was express reference made to any aspect of Petitioner’s alleged experiences in Vietnam. Rather, the prosecution simply argued: Mr. Silagy has proved throughout his lifetime ... that he is a violent man; that he has proved through his convictions and through the testimony that he continues to be a violent man.... The facts ... only indicate, one, that Mr. Silagy is an incredibly violent man; and, two, that he has a very, very bad temper. That’s all the evidence shows. That is the evidence by Dr. Traugott and Dr. Pugh, who, both — one didn’t diagnose anything but alcoholism Mr. Silagy has a problem with. The other one — neither within that realm diagnosed him as having a mental disease or defect. Beyond this, the nature of the argument during the closing portions of the sentencing hearing consisted only of Petitioner, who at this point was proceeding pro se, asking the jury to allay any feelings of sympathy they may have and sentence him to death. Only years after allowing all of this testimony to come in at trial as an accurate reflection of his experiences in Vietnam did Petitioner reveal that his stories about Vietnam were not in fact true. Indeed, Petitioner did not disclose the actual nature of his tour of duty in Vietnam until all of his state remedies had been exhausted and he had petitioned the district court for habeas corpus review. Yet, it is precisely upon the jury’s exposure to his own false statements that Petitioner bases his fourteenth amendment claim. Although it is apparent that false information was presented to the jury whose decision it was to impose the sentence of death, under the unique circumstances of this case we cannot conclude that Petitioner has suffered a violation of his due process rights. This is an issue the State thought to be waived. We do not agree and will address the merits. On the merits, however, Petitioner’s due process claim must fail. Petitioner premises this claim on the holding of the Supreme Court in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). In Townsend, the Court was asked to reverse the sentence of a prisoner who, without the benefit of counsel, had been sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Id. at 741, 68 S.Ct. at 1255. In concluding that due process required that the sentence be reversed, the Court stated, “it is careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.” Id. (emphasis added). As is evident from this language, the Court’s due process concern focused on situations in which the prisoner did not have an adequate opportunity to respond to the false nature of the information presented to the jury. This same concern prompted this court to vacate the death sentence imposed on the petitioner in Lewis v. Lane, 832 F.2d 1446 (7th Cir.1987), cert. denied, 488 U.S. 829, 109 S.Ct. 83, 102 L.Ed.2d 59 (1988). In Lewis, the prosecution erroneously represented to defense counsel, and to the jury during the sentencing hearing, that the petitioner had previously been convicted of four prior felony convictions. Certified records which were later obtained by the prosecution, yet concealed from defense counsel, revealed that petitioner had actually been convicted of only two prior felony convictions. Based on the inaccurate nature of this information and the inability of the petitioner to adequately respond to same, this court determined in the context of a sixth amendment “effective assistance of counsel” claim that the sentence imposed must be reversed. Id. at 1458. The due process concerns which un-derlied the Supreme Court’s decision in Townsend and, indirectly, this court’s decision in Lewis are not present under the facts presented to the court today. Specifically, we reject Petitioner’s assertion that his due process rights were implicated by the introduction of the Vietnam testimony into his sentencing hearing. The exposure about which Petitioner now complains was nothing but the result of his own fabrications of his Vietnam experiences. Indeed, to the extent the information which came into evidence at trial had explicit references to Silagy’s fabricated acts of atrocity, it was the result of his own counsel’s cross examination of the State’s psychiatrists. Any references to Vietnam during the State’s direct examination of these witnesses was very limited and nondescript. Finally, in response to the State’s motion to admit into the sentencing hearing all of the evidence presented at trial, the Petitioner was expressly asked whether he understood the implications of such an admission. In particular, Petitioner was asked whether he understood that the admission of this testimony would necessarily include the testimony of the psychiatrists. Petitioner responded that he did understand. In sum, it was Petitioner’s own efforts to disguise the facts which led to false information being elicited by his own counsel. Moreover, Petitioner had an adequate opportunity to respond to the inaccurate nature of the information and, more importantly, prevent it from being presented to the jury during the sentencing phase of the trial. Based on all of these facts, there was no deprivation of due process. Petitioner’s eighth amendment challenge to the admission of this testimony during the sentencing hearing presents a different issue for this court’s consideration — i.e., whethe