Full opinion text
PER CURIAM. Ronald Turney Williams appeals from the denial of his 28 U.S.C. § 2254 petition. A jury convicted him on February 10, 1984, of first degree murder and armed burglary in the first degree for breaking into a home, burglarizing it, and shooting and killing someone who saw him, John Bunchek. Williams was sentenced to death on the murder conviction and to an aggravated term of fourteen years for the burglary conviction. The Arizona Supreme Court affirmed, State v. Williams, 166 Ariz. 132, 800 P.2d 1240 (1987), cert. denied, Williams v. Arizona, 500 U.S. 929, 111 S.Ct. 2043, 114 L.Ed.2d 128 (1991), reh’g denied, Williams v. Arizona, 501 U.S. 1265, 111 S.Ct. 2921, 115 L.Ed.2d 1084 (1991), and denied his petition for post-conviction relief. We affirm the district court’s denial of habeas relief. I John Bunchek, an elderly Scottsdale resident, was shot and killed on March 12, 1981. A white male who had been seen wandering around the neighborhood just before the shooting knocked on the Bun-chek’s door and asked Sylvia Bunchek whether her next-door neighbors were home. Mrs. Bunchek told him that they were not. Mrs. Bunchek saw the stranger walk toward the neighbors’ (the Tancoses’) house. She expressed concern to her husband when he arrived a few minutes later. He went to investigate. When he failed to return, Mrs. Bunchek went to the Tañeos house where she found her husband lying face down in a pool of blood, having been shot in the chest. John Bunchek ultimately died from the wound. In addition to Mrs. Bunchek, five other witnesses saw the stranger in the neighborhood that day. Brenda Wood and William Koranda had talked with him face-to-face; Alan and Elizabeth Tautkus saw him for about five seconds as they drove by in their car. Wood and the Tautkuses provided the police with a description from which a composite sketch was prepared. This sketch was televised and published in local newspapers on March 13. It was seen by one of Williams’s roommates, Lynn Walsh. Williams rented a house that was about three minutes from the Tuatkus home with Walsh, James McClas-key and Cheryl Le Due. Walsh told McClaskey and Le Due that the drawing looked like “Randy.” “Randolph Cooper” and “Randy Despain” were names that Williams testified he used while he was in Arizona. The roommates looked at the drawing and made the composite face look thinner and more bearded. McClaskey then called Silent Witness and reported their suspicions that Williams was the suspect. Meanwhile, without telling anyone, Williams “threw his stuff in the trunk of the car” and took off from Scottsdale the day of the murder. He was arrested after a shoot-out with FBI agents in New York City on June 8,1981. An Arizona grand jury indicted Williams and, following an extradition hearing, Williams was arraigned on April 3, 1983. Counsel was appointed for him, but Williams elected to represent himself at the guilt phase with the assistance of advisory counsel. The evidence at trial showed that none of the items taken from the Tañeos residence during the burglary was found in Williams’s possession. However, the Mauser .380 semiautomatic pistol that Williams used in the New York shoot-out was the same gun that fired the bullet which killed Bunchek. Williams had bought this gun in Mechanicsville, Virginia, in 1980. Also, a footprint on the door of the Tañeos house matched the tread marks of a type of athletic shoe that Williams had owned when he was in Scottsdale. In addition, Mrs. Tautkus identified Williams as the person she saw on March 12, although Wood and Koranda both testified that Williams was not the man they had seen in the neighborhood. After Williams was shot and apprehended in New York, a nurse asked the FBI agent accompanying Williams to the hospital what Williams had done. The agent indicated that “he killed a bunch of people down south.” When Williams mumbled “no, no, no,” and the agent said “What about the old man in Scottsdale,” Williams replied either “If[I] hadn’t been framed in the first place, it never would have happened,” or “None of this would have happened if I hadn’t been framed in the first place.” Williams’s reference to being framed was to a prior murder conviction in West Virginia. Williams subsequently also admitted to burglarizing the home of Marjorie Larson in Virginia in December 1980. Like the door to the Tañeos residence, the Larson front door was opened by bodily force. Both were daytime burglaries during which small items were stolen. As Williams was leaving the Larson house, he saw Larson standing in a neighbor’s driveway and shot at (but did not hit) her. The gun used to fire at Larson was the same gun that was used in the Bunchek murder and that Williams used in the shoot-out with the FBI. Williams left Virginia after the Larson burglary although he was engaged to be married at the time. Williams testified on his own behalf. His defense was that McClaskey and McClaskey’s friend, “Bobby,” had borrowed his gun and committed the crime. However, LeDuc and Walsh testified that McClaskey looked and dressed differently from the man seen in the neighborhood that day. Neither knew of any friend of McClaskey whose name was “Bobby.” Williams also testified that he left Scottsdale to avoid being investigated for escaping from jail in 1979, committing the burglary in Virginia, and having no identification. Williams admitted that he lied under oath (at the extradition hearing) about aliases he had used, people he knew, and his presence in Arizona at the time Bunchek was killed. The jury returned a guilty verdict on the first degree murder and burglary counts on February 10, 1984. The trial court denied Williams’s motion for a new trial. In keeping with practice at the time, the sentencing phase was tried to the court pursuant to A.R.S. § 13-703 (Supp. 1986). At Williams’s request, the court ordered two independent psychological evaluations. Both mental health experts concluded that he had no psychotic condition. Also at Williams’s request, his advisory counsel was appointed as counsel for purposes of the sentencing phase on April 11, 1984. Williams presented numerous witnesses and letters in mitigation to show that he was subjected to a difficult childhood, that he is a religious person, that he had been a good parolee, that he had been helpful to other inmates while incarcerated, and that the circumstances surrounding his prior convictions warrant mitigation, including the fact that a key witness in the first murder recanted and that his second conviction was based only on his participation in a prison escape rather than in the actual killing. The trial court considered evidence, bearing on nineteen allegedly mitigating factors during the six-day proceeding, and concluded that they were insufficient to mitigate Williams’s life of crime. On April 23, 1984 the court found no mitigating circumstances and found aggravating that Williams had two prior convictions for which life imprisonment could be imposed, and that Williams murdered Bunchek for pecuniary gain. Id. § 13 — 703(F)(1), (5). It therefore sentenced Williams to death. Id. § 13-703(E). The Arizona Supreme Court agreed with the trial court’s finding that the allegedly mitigating circumstances were insufficient to warrant leniency. Extensive post-sentencing proceedings occurred. The state supreme court affirmed the conviction and sentence on direct appeal, and denied several motions for reconsideration. In January 1992, Williams filed a preliminary state petition for post-conviction relief, subsequently supplemented with additional claims. The trial court dismissed the petition on January 26, 1994, and the Arizona Supreme Court denied review on April 25, 1995. The supreme court issued a death warrant scheduling the execution for September 1995. Williams filed a federal petition for writ of habeas corpus on August 15, 1995, later amended to raise thirty-five claims for relief. The district court determined that several of the claims were procedurally barred, and denied the remaining claims on the merits in an exhaustive memorandum of decision and order filed January 5, 2001. ' Williams sought, and received, a Certificate of Appealability on twenty claims. II Williams first argues that Elizabeth Tautkus’s testimony identifying Williams as the person she saw the day of the crime was the result of an unconstitutionally suggestive pretrial identification procedure. He submits that the error of admitting it cannot be harmless, as the district court held, where eyewitness testimony such as Mrs. Tautkus’s is the only evidence placing a defendant at the scene of the crime. Williams contacted the Tautkuses (who had been unable to identify him in a photographic array) to obtain a statement from them, as he had from Wood and Koranda, that Williams was not the person they saw. The Tautkuses were not cooperative, so Williams subpoenaed them for a deposition on August 28, 1983. Although Williams’s advisory counsel, Richard Mesh, was present, Williams took the deposition himself. The court denied his request to be relieved of manacles and prison attire. Mrs. Taut-kus found his appearance “a little disturbing,” but testified at trial that it did not influence her identification. The Tautkus-es and Mesh got into something of a shouting match before the deposition began, causing the prosecutor to intervene. He told the witnesses that they were there to help determine the accuracy of the information in the police report and to see if they could identify Williams as being the fellow they had seen on the day that Bun-chek had been shot; he added that he did not know personally whether Williams had done the shooting and that he wanted the Tautkuses to testify truthfully to what they knew. Once the deposition began, Williams pressed Mrs. Tautkus to state whether he was the person she saw walking on Maleomb Drive on March 12. She responded affirmatively when Williams took his glasses off. The Arizona Supreme Court recognized that Mrs. Tautkus’s identification of Williams was under “extremely suggestive circumstances,” but concluded that it did not offend due process because it was Williams who procured the identification under suggestive circumstances. 166 Ariz. at 137, 800 P.2d 1240. We agree. Although the state had not indicated that it would call the Tautkuses, Williams compelled Mrs. Tautkus to attend a deposition where it was obvious that he was the only suspect. He chose to conduct the deposition himself rather than have advisory counsel do so. While the manacles and prison garb were involuntary, they were reasonable in light of security concerns and added only marginally to the suggestiveness created by Williams’s voluntary presence and self-identification as the defendant. Overall, we cannot say that the confrontation was so “impermissibly or unduly suggestive under the totality of the circumstances” that Williams was denied due process. Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.1995) (holding that the defendant’s voluntary presence at a suppression hearing where identification was made was suggestive, but not the sort of “unnecessary” or “impermissible” suggestion that violates due process); see Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In any event, as the district court found, even if the trial court did violate Williams’s due process rights by admitting the pretrial identification, the error was harmless. Mrs. Tautkus’s testimony did not have substantial and injurious effect or influence in determining the verdict under Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Cross-examination brought out the weakness of her identification, the suggestiveness of the circumstances under which it was made, the few seconds she had to see the suspect to begin with, the fact that she had been unable to pick Williams out of the photo array, and the two and a half years that had elapsed between her five second encounter on March 12 and the deposition at which she identified Williams. In addition, two other witnesses with a better opportunity than Mrs. Tautkus to see the suspect testified that Williams was not the person they saw in the neighborhood. Finally, strong circumstantial evidence connected Williams to the scene — -he rented a house a few minutes away and a shoe print matching a pair of shoes he owned was found on the Tancoses’ front door — and to the murder, given that his gun killed John Bunchek and that Williams fled immediately thereafter. Williams’s alternative request for an evi-dentiary hearing is unsupported and fails as well. Ill Williams faults admission of the statement he made in response to the FBI agent’s question about the old man in Scottsdale. Williams was read his Miranda rights just after he was shot. Mi-randa v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Either in the ambulance or at the hospital, a nurse asked an FBI agent “what did this guy do.” The agent responded that “he killed a bunch of people down south.” Williams mumbled “no, no, no.” The agent then asked, ‘What about the guy, the old man down south?” (or “the old man in Scottsdale”). Williams then said: “If I hadn’t been framed, that wouldn’t have happened in the first place,” or “None of this would have happened if I hadn’t been framed in the first place.” After a voluntariness hearing, the trial court credited the agent’s testimony about timing and determined that Williams’s statement was knowingly, intelligently, and voluntarily made after he was advised of his Miranda rights and before he said that he wanted a lawyer. The prosecution did not introduce the statement in its case-in-chief, but Williams did. He now argues that his silence in the interim between being administered the Miranda warning, and making the statement, indicates that he invoked his rights and didn’t waive them. The district court agreed with the trial court’s findings that Williams interjected himself into the conversation between the nurse and FBI agent, that this interjection led to the agent’s question, and that Williams voluntarily answered it. So do we. See United States v. Andaverde, 64 F.3d 1305, 1313 (9th Cir.1995) (implying waiver where a defendant did not invoke his rights, then initiated a conversation, and later did invoke his rights). Regardless, Williams’s statement would have been admissible for the purpose the prosecution sought to use it — to impeach Williams when he took the stand. Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Accordingly, Williams is not entitled to habeas relief on this account. IV Williams complains that the “other acts” evidence admitted by the trial court was impermissible character evidence that was prejudicial. It consisted of testimony concerning the Larson burglary that Williams committed in Virginia on December 2, 1980; the shoot-out between Williams and the FBI in New York; Williams’s use of an alias, James Byrd, to buy the Mauser .380 caliber automatic on October 16, 1980, to obtain a Virginia driver’s license in that name, and to procure insurance policies; and Williams’s opulent lifestyle, without apparent means of support, when he was engaged to Diane Bowery. “A habeas petitioner bears a heavy burden in showing a due process violation based on an eviden-tiary decision,” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.2005), and Williams has failed to carry it. The opulent lifestyle testimony presents no due process problem because the trial court sustained Williams’s objection and admonished the jury to disregard it. See United States v. McCormac, 309 F.3d 623, 626 (9th Cir.2002) (noting that “juries are presumed to heed cautionary instructions”). Nor does the evidence that Williams used a false name implicate due process because it was necessary to tie Williams to the gun that killed Bunchek; this could not be done if the person named on the driver’s license used to purchase the gun had really been Byrd instead of Williams. See Windham, v. Merkle, 163 F.3d 1092, 1103 (9th Cir.1998) (observing that admission of “other acts” evidence will violate due process only when there are no permissible inferences the jury may draw from it). Williams also conceded that he lied under oath and used different aliases while in Scottsdale, so evidence of another alias cannot have been unduly prejudicial. Evidence of the Larson burglary bears on the identity of Bunchek’s killer. That the same gun belonging to Williams was used to shoot at Larson and to kill Bunchek is a signature element that links Williams to both burglaries. See, e.g., United States v. Higgs, 353 F.3d 281, 311— 12 (4th Cir.2003) (holding that evidence of a nightclub shooting two months prior to a murder was admissible identity evidence where the caliber of the bullets fired at the nightclub was the same as the caliber of the bullets fired in the murder). There are other similarities as well: Both were daytime burglaries, in both the doors were knocked open by bodily force, in both only small items were taken, and in both the burglar directed a gunshot at a witness. Williams left town immediately after both burglaries. See, e.g., United States v. Quinn, 18 F.3d 1461, 1466 (9th Cir.1994) (finding sufficient distinctiveness where two bank robberies occurred close together in time and location, were “takeover” robberies, and were committed by a person of similar size and dress brandishing a similar weapon). The jury was instructed not to consider evidence of other crimes or acts as proof of the character of the defendant in order to show that he acted in conformity therewith, but to consider it only as evidence of proof of intent or identity. This properly limited the jury’s consideration of the “other acts” and obviates Williams’s concern that his “other acts” were impermissible character evidence. Finally, evidence about the shoot-out was probative of Williams’s identity as Bunchek’s killer because he still had (and used) the Mauser .380 after the Bunchek murder. The events surrounding Williams’s arrest also provided relevant context for the statement that he made in route to, or at, the hospital. Williams argues that he should have been allowed to stipulate to possession of the gun, but due process does not require as much. Old Chief v. United States, 519 U.S. 172, 186-87, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (holding that “the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, ... a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it”). Williams’s alternative request for an evi-dentiary hearing is unsupported and no basis appears for granting it. V Williams asserts that the prosecutor engaged in misconduct by submitting false evidence to the grand jury; tainting the Tautkus identification testimony by telling her that she was only there to identify Williams as the person she saw in her neighborhood; and concealing the location of McClaskey, who was a critical defense witness. Williams refers to other incidents as well, including abusive language and tampering with evidence, that the district court properly found had not been fairly presented to the Arizona Supreme Court. See Bose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (requiring exhaustion); Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (explaining that to exhaust, a petitioner must “fairly present” claims to the state’s highest court). The only allusion to these incidents came in Williams’s supplemental motion for reconsideration of the supreme court’s decision affirming his conviction and sentence, and even so, only in the form of a record citation for one of the incidents in connection with claims of ineffective assistance of counsel. This is insufficient to present the issue fairly and to preserve it for habeas review. Rose v. Palmateer, 395 F.3d 1108, 1110-11 (9th Cir.2005) (holding that a petitioner does not fairly present a Fifth Amendment claim to the state courts when it is merely discussed as one of several issues handled ineffectively by counsel). Williams’s suborning perjury argument turns on an exchange between the prosecutor and Detective Bingham. In Williams’s view, Bingham falsely testified that Williams’s fingerprints had been found at the crime scene and that the footprint on the door of the Tañeos residence matched his shoes. The district court found that Bingham did not testify falsely, and we agree. While the prosecutor’s query about “that residence” could have been clearer, in context it is clear enough that the line of questioning had to do with Randy Cooper’s residence. The point was that Williams was “Randy Cooper,” and thus that the NCC Tiger shoe box was Williams’s, not “Cooper’s,” because Williams’s fingerprints showed that it was he, not someone named Cooper, who lived at the residence. Nor was Bingham’s testimony about the shoe print false, as it simply conveys the detective’s conclusion that the type of shoe that made the imprint on the Tañeos door was an NCC Tiger running shoe, and that this was the type of shoe that McClaskey bought for “Randy Cooper.” Bingham did not testify, as Williams suggests, that Williams made the footprint. Regardless, any constitutional error in the grand jury proceedings is harmless because Williams was ultimately convicted of the offenses charged. United States v. Mechanik, 475 U.S. 66, 70, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). During the “shouting match” that occurred after Mrs. Tautkus arrived for her deposition, the prosecutor tried to calm things down and in the process, remarked that “all we were trying to do ... was to determine the accuracy of the information that was in the police report and whether or not they could identify [Williams] as being the fellow who they had seen in the neighborhood on the day that Mr. Bunchek had been shot.” He added that he did not personally know whether Williams was the person who did the shooting and that Mrs. Tautkus should not prejudge the question. In the circumstances, we cannot see how this amounted to coaching that “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (articulating standard for prose-cutorial misconduct). The Atizona Supreme Court found that the prosecutor tracked McClaskey down in Sonora, Texas, had a telephone number for one of his neighbors, and turned this information over to defense investigators before April 1983. Defense investigators were able to contact the neighbor but apparently not McClaskey. McClaskey told state investigators in this time frame that he was going to California for surgery, and evidently left Texas in May. The state did not immediately disclose this to Williams, but did so at some point. The supreme court found that Williams knew as much about McClaskey’s whereabouts as the state, which “did not fail to disclose relevant information to the defense.” 166 Ariz. at 142, 800 P.2d 1240. This finding is entitled to a presumption of correctness that Williams has not overcome. At most the evidence Williams relies upon shows that the state had kept in touch with McClaskey when he was in Texas; there is no indication that Williams made any effort to find out where McClaskey was after his investigators were told that McClaskey was in Sonora, or that the prosecution somehow “concealed” him. Williams’s offers no reason why he should have an evidentiary hearing on this issue, and we decline his request for remand. VI Williams also claims .judicial misconduct on account of the trial judge’s display of bias and hostility. Williams cites the judge’s requiring him to stay near counsel table during the trial and threatening that he would be shot if he strayed; requiring Williams to obtain permission from the guards before getting a drink of water; and advising the guards to be wary. The district court held that only the allegation of bias because of the order to stay near counsel table was exhausted. As to that claim, the court found that the trial judge went out of his way to treat both parties evenhandedly, and that his determination that Williams should stay near the counsel table was based on legitimate security concerns. We agree. The trial judge ordered both Williams and the prosecutor to remain at counsel table during trial so that it would not appear that either side was being treated differently. Requiring Williams to stay put was an entirely sensible precaution given Williams’s history of escaping from custody and of violent encounters with law enforcement agents. He had been charged by the West Virginia State Penitentiary with one attempted escape from that facility, and later Williams in fact escaped with fourteen other prisoners during the course of which a police officer was killed. Williams was convicted of first-degree felony murder for that episode. He also escaped from the Peterson Place Hospital in West Virginia. And Williams had engaged in several outbursts, including physical confrontations with deputies, during pretrial hearings. In these circumstances, reasonable security measures, as well as warnings about non-compliance, were at once prudent and not indicative of bias. See Liteky v. United States, 510 U.S. 540, 556, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (noting that “[a] judge’s ordinary efforts at courtroom administration— even a stern and short-tempered judge’s ordinary efforts at courtroom administration — remain immune [from charges of bias]”). None of the judge’s comments to which Williams now objects was made in the presence of the jury. Further, the facts in this case are completely different from those in Walker v. Lockhart, 763 F.2d 942 (8th Cir.1985), upon which Williams relies. There, the judge instructed a deputy who was to escort the defendant to church that if the defendant “made a move to shoot him down, because he [the judge] didn’t want him brought back to him because he intended to burn the S.O.B. anyway.” Id. at 946. The judge here did not come close to displaying this kind of raw judicial bias. Williams concedes that he did not raise additional facts showing bias or hostility in state court, but contends that additional instances should not be procedurally defaulted because they supplement, rather than change, the basic claim that judicial bias permeated the proceedings. However, he fails to point to any conduct that arguably reveals an opinion derived from an extrajudicial source, or “such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555, 114 S.Ct. 1147. Accordingly, even if claims other than the requirement to stay at counsel’s table were exhausted, they are of the same order of magnitude and are thus subsumed within the conclusion that Williams’s right to trial before an impartial judge was not offended. VII Williams maintains that the voir dire procedures used to select jurors were unconstitutionally restrictive in scope and substance for a number of reasons. The trial court conducted voir dire, and we are not persuaded that it did so in a manner that deprived Williams of an impartial jury. See Mu’Min v. Virginia, 500 U.S. 415, 427, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991) (recognizing that state courts are afforded wide latitude in how they conduct voir dire); Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (requiring voir dire to be adequate enough to identify unqualified jurors). In sum: The court’s failure to ask more than one follow-up question of a prospective juror who had heard about the case and remembered what she heard cannot have prejudiced Williams because the only facts that the juror remembered were that Mrs. Bunchek was home and Mr. Bunchek went next door. Nor does Williams suggest how he could be prejudiced by the court’s asking only one member of the venire, rather than all of them, whether he or she would only consider the defendant’s guilt or innocence and not his possible punishment; if anything, the question, cuts against, rather than in favor of, the defense. Williams claims that the court should have excused one juror for cause who stated that she may have been biased toward Williams because she was once burglarized, but Williams did not make a cause challenge, and the juror ultimately was not seated. The same applies to another prospective juror whose father had been shot by his brother; the judge asked whether this would carry over into the trial and the juror responded negatively. Williams did not request followup before passing the panel for cause, and he used a peremptory challenge to remove this venireman. Likewise, Williams did not challenge a prospective juror who had a good friend who was an FBI or customs agent but said that she would not treat FBI agents’ testimony differently as a result of this relationship. The trial judge also inquired whether prospective jurors could set aside sympathy for the victim’s wife if she testified, despite the fact that she was deceased, but Williams does not explain how this was harmful given that people may, or may not, testify for any number of reasons. Finally, Williams did not try to show the trial court (or us) how refusing to provide the venire with his questionnaire made any difference. As his advisory counsel acknowledged, most of its 150-200 form questions were duplicative of the court’s voir dire, and Williams did not request specific, further questions of particular jurors before accepting the panel. VIII Prior to trial, Williams asked the trial court for funds to secure the attendance of various out-of-state witnesses. After a hearing, the court determined that a number of them were not material. Williams correctly notes that he had a right to submit relevant testimony, Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and to compel the attendance of witnesses in his defense, Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); A.R.S. § 13-4093, but he has not made a plausible showing of how the testimony of absent witnesses would have been material and favorable to his defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982) (adopting this requirement for purposes of the compulsory' process clause); A.R.S. § 13-4093 (making funds available for material witnesses). Williams now claims that Frank Passarella, Dr. DeRossi, Leonard Joy, Luther Cook and Jerry Likens were material because they would have testified to the circumstances surrounding the inculpatory statement that he made to the FBI, and that Bill Mason would have made a difference by helping to show that McClaskey was the killer. The district court agreed with the trial court on the lack of materiality, as do we. Passarella was Williams’s former attorney whom he proffered to testify that FBI agents questioned him before contacting counsel. Testimony to this effect would not have been relevant, however, as the trial court found that Williams did not request a lawyer prior to making the statement. As we have explained, that finding is presumptively correct. Dr. DeRossi was the Chief Surgeon in charge of the trauma team that treated Williams following his arrest by the FBI, but Williams’s investigator testified that DeRossi did not himself treat Williams or know anything about his condition or operation except for information reflected in hospital records. Others who did observe Williams at the time of his statement and were knowledgeable about his treatment did testify, so Williams could not have been prejudiced by DeRossi’s absence. Joy was an Assistant Public Defender who represented Williams during his arraignment at the hospital. According to Williams, Joy would have testified that FBI agents were bothering Williams, that Williams told the FBI “to quit,” and that he had tubes down his throat, TVs in his arm, stitches four or five places, and was in shock. However, the trial court found that Joy did not see Williams until 5:00 p.m. As he was not percipient to Williams’s condition when the inculpatory statement was made around 2:30 p.m, Joy’s only knowledge would have come from Williams and was hearsay. There also was no evidence that Joy would have testified to Williams’s condition. Assuming that he would have, however, anything Joy observed about the shape that Williams was in after surgery has little bearing on his condition when he made the statement. Cook was a West Virginia police officer to whom Likens admitted that he lied when he testified at Williams’s 1975 homicide trial that Williams had admitted killing the victim. Williams proffered both witnesses to show that his statement— “None of this would have happened if I hadn’t been framed in the first place”— was not a confession but related instead to the 1975 West Virginia murder conviction for which Williams claims he was framed. At most, these witnesses could have explained how Williams was framed; they could not have explained what Williams meant by what he said. What his statement meant was the only consequential issue. Whether Williams was framed sheds no light on whether Williams meant by “none of this would have happened” that he would not have been incarcerated, wouldn’t have escaped, wouldn’t have been in Scottsdale, and wouldn’t have been living with McClasky such that McClasky could take Williams’s gun and use it with Bobby to commit the burglary and kill Bunchek — -as he posits — or whether he meant that he wouldn’t have been arrested in New York City after precipitately leaving Scottsdale after burgling the Tañeos residence and shooting Bunchek. Nor would the testimony of Cook or Likens have related to the circumstances surrounding what Williams told the FBI. Therefore, their proffered testimony was neither relevant nor material. Lastly, Mason was a Texas prosecutor who would have testified that there was an outstanding arrest warrant for McClaskey for stealing a trailer. However, the fact that McClaskey may have stolen a trailer does not make it more likely that he, instead of Williams, killed Bunchek. No basis appears for remanding for an evidentiary hearing, as Williams alternatively requests. IX Williams contends that he was denied competent assistance of counsel when his appointed counsel failed to challenge false grand jury testimony and to provide the time, money, and assistance needed to represent him. As a result, Williams asserts that he was forced to undertake his own representation. We have already explained that there was no false grand jury testimony, so by definition counsel was not deficient and Williams was not prejudiced by any failure to object to Detective Bingham’s testimony. In any event, this could not have influenced Williams’s decision to proceed pro se because it wasn’t known at the time. Apart from this, a thorough review of the record leaves no doubt that Williams’s decision to invoke his Faretta rights and to represent himself was knowing, intelligent, unequivocal and voluntary. Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Williams was arraigned on April 3, 1983. Deputy Public Defender Dennis Freeman was appointed to represent him. On April 4, Freeman filed a motion for Williams requesting that Williams be allowed to proceed pro se. At the hearing, Williams had no particular reason for wanting to have Freeman taken off the case, but explained that prison conditions prevented him from being able to interact meaningfully with Freeman or any other attorney. The trial court determined that the conditions of Williams’s confinement did not unreasonably interfere with his ability to consult with counsel. Williams renewed his motion on April 18, 1983. He told the court that he and Freeman had reached an impasse in their relationship, that Freeman had never tried a capital case, and that Freeman had said he was overloaded and that the public defender’s office was short attorneys, investigators and secretaries. In these circumstances Williams was of the opinion that the Maricopa County Public Defender’s Office could not give him adequate representation. Before the court could rule, Richard Mesh, an experienced public defender, stepped in to replace Freeman. In turn, Mesh was relieved a week later, on April 25, 1983, when Williams asked the court to reconsider his request to proceed pro se. At the hearing, Williams stated that he had given the matter a good deal of consideration. Factors he mentioned were the budget problems of the Public Defender’s Office, the charges and the sentences, 'the physical conditions at the jail, and “a number of other things.” Williams expressed no displeasure with Mesh and offered to work with him in the capacity of advisory counsel. He indicated to the court that he had represented himself in two previous cases, one of which went to trial. The trial court engaged in an extensive colloquy during which Williams demonstrated that he had “picked up quite a bit in [his] courtroom experiences,” indicated that he understood the nature of the charges and the sentences that he faced as well as the pitfalls of representing himself and the ground rules by which trial would be conducted, and averred that he wanted “to handle this case personally, manage and conduct this defense on [his] own.” After receiving Williams’s written waiver of counsel, and finding that Williams knowingly, intelligently and voluntarily gave up his right to counsel* the court acceded to Williams’s request to represent himself but appointed Mesh as advisory counsel. Williams represented himself throughout the guilt phase with Mesh as advisory counsel until Mesh was hospitalized; when it became obvious that Mesh could not continue, he was replaced as advisory counsel by another public defender, Robert S. Briney, who was familiar with the case. All arguments that Williams now makes about counsel’s ineffective performance have to do with Mesh’s assistance after Williams invoked his Faretta rights and Mesh became advisory counsel. For example, Williams maintains that Mesh was not able to devote more than eight hours a week to his case, was too overburdened to make phone calls, told him that the work was more than he had ever encountered, did not promptly process the motions that Williams wanted him to type, refused to type a list of voir dire questions, and failed to prepare some diagrams. These alleged deficiencies were brought to the trial court’s attention in connection with Williams’s request for the appointment of additional advisory counsel. Even so, Williams acknowledged, “There’s no problem with Mr. Mesh. He’s done — as far as I’m concerned, he’s doing a terrific job with the amount of time that he has available.” The trial court observed that Mesh was one of Arizona’s most able lawyers, and the district court found no indication that Mesh was not conducting Williams’s defense in a capable manner or that there was irreconcilable conflict. It is well settled that we “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Williams does not show any respect in which Mesh’s performance was unprofessional during the week that he served as counsel before Williams chose to represent himself, nor any respect in which their relationship was conflicted. His waiver could not, therefore, have been influenced, let alone coerced, by ineffective assistance of counsel. See Crandell v. Bunnell, 144 F.3d 1213, 1216 (9th Cir.1998), overruled in part on other grounds, Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir.2000) (stating the rule that a defendant cannot be forced to choose between an incompetent counsel and no counsel, or to proceed when he has an irreconcilable conflict with appointed counsel). X Williams maintains that he was denied expert mental health assistance that was needed to prepare a defense. Prior to trial, he filed two motions seeking the appointment of a psychiatrist. See Rule 11, Ariz.R.Crim.P., 17 A.R.S. In his Motion for Psychiatric Examination of Incarcerated Defendant filed on July 15, 1983, Williams requested a psychiatric examination to determine whether he was “mentally liable and responsible on March 12, 1981.” The motion was unsupported and the trial court denied it because Williams had failed to produce any evidence of a mental problem. The court also noted that Williams was not advancing an insanity defense at that time. On October 20, 1983 Williams filed a motion to Have Defendant’s Mental Condition Examined that sought appointment of two mental health experts to determine whether he suffered from a mental disease or defect on March 12, 1981, or currently. This motion was supported by reports of court-ordered psychiatric examinations in 1964 and 1970. There were three 1964 reports. The first diagnosed him as having “sociopathic personality disturbance, anti-social reaction.” The second offered a tentative diagnosis of “psychoneurotic disorder, depressive reaction” and “schizophrenic reaction, catatonic type.” The third 1964 report found that testing bore out a diagnosis of “chronic undifferentiated schizophrenia” that was “incipient, but progressing.” The 1970 report diagnosed Williams as having “antisocial personality.” Hallucinations were denied. The reports indicated that Williams was bright intellectually with a high IQ, and Williams advised the court that he had no treatment since these examinations. At the hearing, advisory counsel indicated that Williams does “wave in, wave out”; that when things were going well for Williams he was a joy to have as a client but when things were not going well, he was as difficult a client as any; and that Williams wanted to bring to the court’s attention “that, for all he knows, he may have been under some kind of psychiatric disorder at the time of his alleged involvement with Mr. Bunchek that might be of a defensive nature to him that he’s not the proper person to evaluate it.” The trial court denied the motion as it found nothing in the reports to show that Williams was incompetent or insane. The Arizona Supreme Court agreed with the trial court’s findings. It concluded that neither Arizona Rule 11, nor the due process clause, nor Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), supported Williams’s position that a psychiatrist must be appointed whenever a criminal defendant states that he is contemplating an insanity defense. Rather, the court held that some threshold showing that the appointment is reasonably necessary is required, and Williams had made none. The district court found that Williams failed to establish that his sanity was likely to be a significant factor in his defense. It also emphasized that the defense Williams advanced at trial was that McClaskey and Bobby had committed the burglary and murder. Ake, which was decided after Williams was convicted but before the Arizona Supreme Court resolved his direct appeal, held that “when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one.” 470 U.S. at 74, 83, 105 S.Ct. 1087. Of course, Williams cannot be expected to have foreseen and thus to have made the showing contemplated by Ake, but nothing in the record suggests that Williams’s mental health could have been a substantial factor in his defense at trial. Unlike for Ake, insanity was not Williams’s sole defense: Williams’s behavior was not bizarre, and psychiatrists who examined Williams after the guilt phase did not find that he was incompetent, delusional, or psychotic. Id. at 86, 105 S.Ct. 1087 (explaining by reference to these points why it was clear from the record that Ake’s mental state at the time of the offense was a substantial factor in his defense). In these circumstances we cannot say that psychiatric assistance would have been of probable value. Id. at 82, 105 S.Ct. 1087; cf. Gretzler v. Stewart, 112 F.3d 992, 1000 (9th Cir.1997) (noting that even if Ake applied, providing further assistance was not constitutionally required given testimony of two psychiatrists that the defendant’s sanity was not an issue). Williams’s mental condition was simply not “seriously in question.” Ake, 470 U.S. at 70, 105 S.Ct. 1087. Accordingly, his due process rights were not violated. Williams asks for a remand for an evi-dentiary hearing, but suggests no basis upon which an evidentiary hearing should be granted. XI Finally with respect to the guilt phase, Williams contends that the evidence was insufficient to support a conviction. The district court found otherwise based on evidence showing that: Williams possessed the gun that was used to kill Bunchek before and after the murder; the shoe print found on the door to the Tañeos residence was .consistent with a pair of shoes worn by Williams; his roommates identified the suspect in a composite sketch as Williams; Williams left Scottsdale the day of the murder; Williams appeared to confess to Bunehek’s murder; the burglary Williams committed in Annandale, Virginia further indicated that Williams was the Tañeos burglar; and the jury could reasonably disbelieve Williams as he admitted that he lied under oath. Williams’s quarrel with the district court’s analysis is essentially with the weight of this evidence, but our review of the record also leaves us satisfied that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). XII We turn to the issues raised by Williams concerning his sentencing phase. The state trial court imposed the death penalty after it concluded that there were no mitigating circumstances and that there were two aggravating circumstances: that Williams had two prior convictions for which life in prison could be imposed and that the murder of Bunchek was for pecuniary gain. Williams presents several challenges relating to the preparation of two psychological evaluations and the presentence report. As to the psychological evaluations, Williams argues that he was denied an independent psychological evaluation in violation of Ake, and that he was not given a Miranda warning before meeting with two court-appointed mental health experts. As to the presentence report, Williams argues that he was not given a Miranda warning prior to meeting with the probation officer. We address these contentions in turn. Where the mental health of an accused person is genuinely in issue, due process requires the opportunity to have an independent mental health expert to assist the defense. Ake v. Oklahoma, 470 U.S. 68, 74, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Smith v. McCormick, 914 F.2d 1153 (9th Cir.1990), we held that the Ake right to an independent mental health expert applies not just at trial, but also at the sentencing phase. Id. at 1157. However, for an independent mental health expert to be constitutionally required, the defendant must place his or her mental state at issue. See id. We considered in Part X of this opinion, and rejected, Petitioner’s Ake claim in the guilt phase proceedings, because Williams did not make a threshold showing that his mental state was in question. At the sentencing phase, Williams introduced no evidence, apart from the evidence previously introduced during the guilt phase, that suggested his mental state was at issue. Because Williams’s Ake claim regarding sentencing rests upon the same evidence as his claim regarding guilt, and because we held that same evidence was insufficient to establish a threshold showing that his mental state would be at issue, we now hold also that he did not make a threshold showing that his mental state would be at issue during sentencing. Further, our additional review of the record leads us to conclude that Williams’s mental health could not have been a substantial factor during the sentencing phase. Vickers v. Stewart, 144 F.3d 613, 615 (9th Cir.1998). In sum, we conclude that Williams did not show that he placed his mental health sufficiently at issue at sentencing to require an independent mental health expert. We next address Williams’s contention that constitutional error occurred when he was not given Miranda warnings before being examined by two court appointed mental health experts. When Petitioner requested separate funds for a psychological evaluation, the trial court informed Williams of Rule 26.5, which provides: At any time before sentence is pronounced, the court may order the defendant to undergo mental health examination or diagnostic evaluation. Reports under this section shall be due at the same time as the presentence report unless the court orders otherwise. Rule 26.5, Ariz.Rule.Crim.P., 17 A.R.S. The trial court said that it would order a psychological evaluation under Rule 26.5, if that was what Williams was requesting. Williams initially replied that he was not requesting an examination under Rule 26.5 but, after conferring with advisory counsel, Williams accepted the trial court’s offer of an examination under that rule. The trial court then ordered two evaluations, one by an expert that Williams recommended and one by an expert the state chose. The trial court also ordered that the reports by the two doctors be submitted to Williams, to the state, and to the court. Both experts interviewed Williams, and thereafter submitted their reports as instructed by the trial court. It is established that Williams was not given a Miranda warning before either interview, and Williams claims this was reversible error under Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). In Smith, the Court held that “[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” Id. at 468, 101 S.Ct. 1866. The Court clarified the scope of Smith in Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), holding: [I]f a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution. Id. at 422-23, 107 S.Ct. 2906. Here, Williams requested an independent psychological evaluation, and eventually accepted the trial court’s offer of a Rule 26.5 examination. Because Williams requested a psychological evaluation, and thereafter agreed to participate in a Rule 26.5 examination, we .hold that the Fifth Amendment did not require that Williams be given Miranda warnings before he was examined by the mental health experts. Williams also argues that he should have been given a Miranda warning before being interviewed by the probation officer who prepared the presentence report. We have previously held in Hoffman v. Arave, 236 F.3d 523 (9th Cir.2001), that the Fifth Amendment privilege applies during presentence interviews. Id. at 538. But in Hoffman we held that there was no Fifth Amendment violation because Hoffman was informed of his right to remain silent prior to the presentence interview. Id. By contrast, Williams was not informed of a right to remain silent before his presentence interview. Accordingly, the presentence interview of Williams was conducted in violation of the Fifth Amendment. Having concluded that the presentence interview violated Williams’s Fifth Amendment privilege against self incrimination, we next consider whether that was harmless error under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See Pizzuto v. Arave, 280 F.3d 949, 970 (2002) (applying harmless error analysis to a Fifth Amendment violation for using “uncounseled, non-Mirandized statements” against a capital defendant). Applying the standard of Brecht, we must decide whether the error “had substantial and injurious effect or influence” on the proceedings. 507 U.S. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We conclude that the introduction of the presentence report was harmless error. In arguing to the contrary, Williams contends that the report relied on his statements in which he had downplayed a troubled family background. He also points to statements in the report that suggest that he was callous and indifferent to the harm caused to others by his past criminal activity. However, the presentence report also stated that Williams reasserted his innocence during the presentence interview, claimed that he had never harmed anybody during his prior criminal activities, and asserted that he had previously attempted to save the life of a drowning child. Reviewing his statements given in the presentence interview as a whole, and assessing their possible impact on the trial court, we cannot conclude that the introduction of the presen-tence report before the sentencing judge “had substantial and injurious effect or influence” on the sentencing proceedings. The admission of the PSR was also harmless because there was no testimony in the PSR that was not presented previously by other sources. We also conclude that there is no proper basis for Williams’s request for an eviden-tiary hearing on these issues. XIII Williams maintains that the trial court misused Williams’s assertion of innocence against him when it denied his request to investigate potential mitigating evidence, and when it found that there was no possibility that Williams would be rehabilitated. Williams first argues that the trial court held Williams’s assertion of innocence against him when it denied Williams the funds necessary to investigate and present mitigating evidence. Although Williams presents this argument in broad and extravagant terms, the only evidence in the record to which he cites in support of this claim, and the only specific claim addressed by the district court, concerns a request for genetic testing. Williams requested that the trial court provide defense funds to test for an XYY chromosome abnormality, which might have shown that Williams was genetically predisposed to violent behavior. Williams’s claim turns on an exchange with the trial court, in which the court sought to understand how evidence of a chromosome abnormality would be mitigating. Although the trial court was skeptical how Williams could proclaim his innocence and simultaneously argue that whatever crimes he had committed were on account of a genetic abnormality, the trial court did not deny funds for the testing because Williams maintained he was innocent. Rather, Williams offered no evidence suggesting that testing was warranted, and admitted that he had “no idea” whether he had a chromosome abnormality. We conclude that the trial court did not use Williams’s assertion of innocence against him in this respect. Williams also argues that the trial court held his assertion of innocence against him when the trial court found that there was no possibility of rehabilitation. Williams does not cite to the record to support this claim, and the state argues that the trial court found that Williams could not be rehabilitated based on his long and violent criminal history. But even if the trial court did consider Williams’s assertion of innocence when it found that Williams could not be rehabilitated, this was not error. See Gollaher v. United States, 419 F.2d 520, 580 (9th Cir.1969) (“It is almost axiomatic that the first step toward rehabilitation of an offender is the offender’s recognition that he was at fault.”). We hold that the state trial court in sentencing did not offend the Fifth Amendment by penalizing Williams for asserting his innocence. XIV When detailing potential aggravating circumstances at the presentence hearing, the prosecutor cited the Larson burglary in Virginia and Williams’s use of a gun when he was arrested in New York by the FBI. Williams argues that because he had not been convicted in connection with these incidents, the trial court should not have considered them to be aggravating circumstances. See A.R.S. § 13-703(E) (Supp.1986) (enumerating specific aggravating circumstances). Williams has cited no authority, and we have found none, stating that the trial court could not consider other potential aggravating circumstances. Further, considering prior unadjudicated criminal conduct is permissible under Arizona law under some circumstances. See State v. Rossi, 171 Ariz. 276, 830 P.2d 797, 800 (1992) (“While defendant had no felony convictions, he had been arrested for theft, forgery, drug offenses and possession of a firearm, facts that a court may legitimately consider when lack of a conviction record is advanced as a mitigating factor.”). We need not decide whether A.R.S. § 13-703(E) provides an exhaustive list of aggravating circumstances that a court may consider. The district court found, and we agree, that the trial court did not consider the unadjudicated offenses when determining the existence of aggravating circumstances. The record indicates that the prosecution sought to characterize the prior unadjudicated acts as aggravating circumstances, but not that the trial court considered them to be aggravating circumstances. Here, the trial court stated that it found only two aggravating factors: that Williams was convicted of two prior offenses for which life imprisonment could have been a penalty under Arizona law, and that the murder of John Bunchek was for pecuniary gain. “[I]n the absence of any evidence to the contrary, we must assume that the trial judge properly applied the law and considered only the evidence he knew to be admissible.” Gretzler v. Stewart, 112 F.3d 992, 1009 (9th Cir.1997). In light of this presumption, and in absence of evidence that the trial court considered Williams’s prior unadjudicated acts when determining aggravating circumstances, we affirm the district court’s rejection of this claim. XV Williams claims that he was unconstitutionally denied the appointment of a mitigation investigator. Williams had the assistance of James Vance, an investigator who assisted the defense during the trial phase and who conducted a mitigation investigation during the sentencing phase. Williams argues that he was denied the resources to allow Vance to conduct an adequate investigation, and that Williams should have been appointed an additional private investigator. There is no doubt that in appropriate circumstances a court must provide investigative help to ensure that an accused has received the effective assistance of counsel. We have previously held that “the effective assistance of counsel guarantee of the Due Process Clause requires, when necessary, the allowance of investigative expenses or appointment of investigative assistance for indigent defendants in order to insure effective preparation of their defense by their attorneys.” Mason v. Arizona, 504 F.2d 1345, 1351 (9th Cir.1974). For the appointment of an investigator to become constitutionally necessary, the defendant must sho