Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge O'SCANNLAIN

The opinion and dissent filed on July 15, 2003 is hereby amended. The clerk shall file the amended opinion and dissent.

REINHARDT, Circuit Judge.

In this pre-AEDPA death penalty case, Petitioner Fernando Belmontes, Jr., appeals the district court's denial of his petition for writ of habeas corpus. Because the jury was not instructed that it must consider Belmontes' principal mitigation evidence, which tended to show that he would adapt well to prison and would likely become a constructive member of society if incarcerated for life without possibility of parole, and because there is a reasonable probability that the instructional error affected the jury's decision to impose the death penalty on Belmontes, we grant the petition with respect to the penalty phase. We reject, however, those claims that seek relief from the judgment of conviction and the finding of special circumstances. Accordingly, we affirm the district court's decision in part, reverse in part, and remand with instructions to issue a writ vacating the death sentence.

On the morning of Sunday, March 15, 1981, 19-year-old Steacy McConnell telephoned her parents and stated that she was afraid because several people, including codefendant Domingo Vasquez, had threatened her. Several hours later, McConnell's parents arrived at her residence in Victor, California, and found her lying unconscious in a pool of blood. She died shortly thereafter from cerebral hemorrhaging caused by fifteen to twenty blows to her head with an iron bar. Her skull was cracked, and she had defensive injuries on her hands, arms, and feet. The house was ransacked and her stereo was missing.

On the Tuesday preceding the murder, several people, including Vasquez and another codefendant, Robert "Bobby" Bolanos, partied at McConnell's house. Although Bolanos left the residence early Wednesday morning, the party continued until Friday, when Vasquez stole a quantity of "black beauties" — amphetamine pills — from McConnell. Upon discovering the theft, McConnell threw Vasquez and his friends out of the house. The group subsequently discussed their dislike of McConnell.

Police investigation of the individuals who had been present at the party extended to Vasquez, and ultimately to Bolanos, who drove a distinctive black Chevy. The police recognized Bolanos' car as matching the description of the car that had been seen in McConnell's driveway at the time of the murder. The police impounded the car and interrogated Bolanos. Bolanos eventually admitted that he had been involved in the events that led to McConnell's death; he identified Vasquez and Petitioner Fernando Belmontes, Jr., who had not been at the party but who had been visiting him over the weekend of the murder, as his coadventurers. On the strength of Bolanos' statement, the police obtained a warrant and headed South to Ontario, where they arrested Belmontes at his brother's home. Belmontes was nineteen at the time.

Belmontes, Bolanos, and Vasquez were each charged with first degree murder and special circumstances. However, Bolanos soon arranged a deal with the prosecution in which he agreed to testify against Vasquez and Belmontes in exchange for a guilty plea to second degree burglary and immunity on the murder charge. At Vasquez's preliminary hearing, Bolanos fingered Belmontes as the main assailant. After the preliminary hearing, the trial judge dismissed the special circumstances charge against Vasquez, and he pled guilty to second degree murder. That left Belmontes, who alone proceeded to trial.

Bolanos was the principal witness for the state. He testified that on the morning of Sunday, March 15, he and Belmontes drove to Vasquez's residence to hang out. When they arrived, Vasquez was on the phone with McConnell. When Vasquez hung up the phone, he informed them that McConnell would not be home during the latter part of the day. The three were short of cash, and they agreed to burglarize McConnell's residence, steal her stereo, and "clean house." Vasquez's wife, Karrie Lynn, testified that as the men departed through the kitchen, Belmontes grabbed from the counter an iron dumbbell bar, which she used for rolling tortillas.

Bolanos told the jury that the three men drove to McConnell's house in Bolanos' vintage, black car and parked a short distance from the house. According to Bolanos, Belmontes stated that he would approach the house alone, on foot, carrying the metal bar in case he needed to force entry, so that he could gather McConnell's valuables and place them near the door to facilitate a quick getaway, and that the other two should wait for about five minutes and then bring the car around to McConnell's house.

Bolanos testified that the events unfolded as follows: Belmontes left his wrist-watch with him, concealed the bar under his jacket, and walked to McConell's residence. Bolanos and Vasquez waited about five minutes, then drove up and backed into McConnell's driveway. Vasquez tried to open the trunk but could not find the right key. Bolanos got out of the vehicle to assist Vasquez. He heard repeated knocking or banging noises coming from within the house. Bolanos unlocked the trunk and got back inside the car, while Vasquez walked to the front door to assist Belmontes. Shortly thereafter, Belmontes and Vasquez emerged from the back door of the house carrying stereo components. Belmontes was sprinkled with blood on his face, pants, and shoes. Vasquez "looked like he had seen a ghost." Belmontes stated that he had had to "take out a witness" because she was home. He explained that when McConnell heard Vasquez and Bolanos drive up, she looked away from him and he seized the opportunity to hit her with the bar approximately fifteen times.

Lucy Flores, McConnell's neighbor, testified that on the morning of the murder she watched Bolanos' Chevy as it backed into McConnell's driveway. She observed a man get out of the passenger side and try to unlock the trunk. He appeared to be having difficulty, whereupon the driver got out of the car and unlocked it. The driver got back in the car, while the passenger walked towards the front of McConnell's house and met a third man. She did not see where the third man had come from. The two men headed toward the front of McConnell's house. A short while later, she saw them exit McConnell's house from the back door, carrying stereo equipment, which they loaded in the trunk before getting in the car and driving away.

Bolanos testified that, after leaving McConnell's house, the three drove to the nearby city of Galt, where they intended to fence the stereo. En route, Belmontes wiped blood from the metal bar and his shoes. Belmontes threw the bar out of the window as they crossed a bridge over the Mokelumne river.1 They went to the home of Manuel Vasquez, Domingo's brother, where Belmontes changed his pants. The three contacted Raul Barron, who met them at the home of Irma Vasquez, Domingo's sister, and purchased McConnell's stereo components from them. Barron later testified that he paid $100 for the stereo to a man wearing a baseball cap (Belmontes), who did most of the talking.

Teresa Cobarrubio, Bolanos' girlfriend, testified that Bolanos gave her fifteen dollars from the proceeds of the sale of the stereo. Acting scared, he informed her that he, Belmontes, and Vasquez had burglarized McConnell's residence. The following day, Bolanos and Cobarrubio read a newspaper account of McConnell's murder, and Bolanos related further details of the crime. He told Cobarrubio that he had remained in the car, and that Belmontes had exited the house with blood on his clothes and had stated that he "had to take a witness out."

Bolanos testified that on Monday, March 16, Vasquez called him to advise that he had been questioned by police and did not want to "take the rap" for the murder. Bolanos and Belmontes went to Vasquez's house, where the three conferred. Karrie Lynn Vasquez testified that from the kitchen she overheard Belmontes say that he entered McConnell's house alone and hit her multiple times with the bar before Vasquez joined him in the house.

Barbara Murillo, Belmontes' girlfriend, testified that after the meeting, Belmontes telephoned her and told her that he was "in trouble." He reported that he had gotten into an argument with McConnell at her house, become angry and hit her, and that she fell and "went to sleep," although he "didn't mean for her to go to sleep."

Detective Holman, the lead investigator, testified that Belmontes furnished three tape-recorded statements shortly after his arrest. In the first statement, he denied any involvement in the crime. In the second, he admitted the burglary but denied hitting McConnell. In the third statement, he admitted hitting McConnell, but insisted that he only hit her once, and then only at Vasquez's direction. He stated that the single blow he delivered caused McConnell to fall down, whereupon he dropped the bar and began searching the house for valuables, leaving Vasquez alone with McConnell. Belmontes contended that he did not pay attention to Vasquez's actions during this period and did not observe how McConnell came to have suffered fifteen to twenty fatal blows to her head. Holman also testified that a small drop of blood found on the tongue of one of Belmontes' shoes tested as "type O" — McConnell's blood type.

Dr. Maduros, the pathologist who performed the autopsy on McConnell, testified that she died from cerebral hemorrhaging caused by fifteen to twenty blows to the back left portion of her skull. She had a separate contusion on her right temple, which was caused by a single blow of lesser force that did not lacerate the skin. However, this blow alone would not have caused death and, if it had been the first, it would not likely have caused unconsciousness. Injuries to McConnell's arms, hands, legs, and feet evidenced a struggle. According to Dr. Maduros, there would have been sounds "like a cracked pot" associated with the blows that fractured McConnell's skull, and blood would have splattered in a manner consistent with the blood patterns found on the door jambs in her house.

Belmontes testified in his own defense. He insisted that Vasquez dealt the fatal blows while he, Belmontes, searched the back part of the house for something to take. Belmontes recounted that he and Bolanos had gone over to Vasquez's house, and that when Vasquez mentioned that McConnell would not be home, they decided to steal her stereo. Although they expected McConnell to be away, the plan was that Belmontes would go to the door in case she turned out to be home; because of the unhappy denouement of her party a few days earlier, McConnell would become angry and suspicious if she saw Vasquez or Bolanos at her door. Although Belmontes had met McConnell a few times in the past, she did not know that he was a friend of Vasquez and Bolanos.

Belmontes' version of events was consistent with Bolanos' up to the point of who struck the blows that killed McConnell. Belmontes agreed that Vasquez and Bolanos stayed in the car while he walked to McConnell's front door. He stated that Vasquez had given him the metal bar to use to break a window; but that he concealed it in his sleeve. According to Belmontes, he knocked at McConell's door and, to his surprise, she answered. As soon as he found out that she was home, he abandoned his intent to burglarize her residence. He told her that he was hitchhiking and had stopped by because it was raining. McConnell invited him in. She noticed a bulge in his sleeve and asked what it was. He showed her the bar and explained that he had it because he was hitchhiking. He used McConnell's bathroom and then stood by the table and talked to her while she ironed clothes. McConnell told him that she was having problems with some people and asked him if he knew Domingo Vasquez. Belmontes said that he had met him.

Belmontes' testimony continued: Five minutes after he entered the house, Bolanos and Vasquez pulled into the driveway. McConnell started walking toward the front door. Belmontes followed behind her and was placing the bar back up his sleeve when Vasquez rapped on the door. Under Belmontes' version, when Bolanos' car backed into the driveway, Vasquez would have had to proceed immediately to the front door; he would not have had time to go to the trunk of the car to attempt to open it.

According to Belmontes, after he knocked at the door to McConnell's house, Vasquez pushed it open, saw McConnell, and ordered Belmontes to "hit her." Belmontes followed Vasquez' directive and, using a backhanded sweeping motion, struck McConnell on the side of her head with the bar. She fell to the floor. Belmontes dropped the bar, ran to the back bedroom, broke down the door, searched that room and the kitchen, and returned to the living room. He did not enter the master bedroom. Upon returning to the front of the house, he observed Vasquez standing over McConnell and holding the metal bar. He did not see Vasquez hit McConnell or hear any blows landing because he was not paying attention. He could not explain the presence of defensive bruises and contusions on McConnell's hands, arms, and feet.

The rest of Belmontes' testimony is, with one significant exception, consistent with Bolanos': Belmontes and Vasquez gathered the stereo components and exited from McConnell's back door. They loaded the stereo components into the trunk. Vasquez got in the back seat, Belmontes rode shotgun, and Bolanos drove. According to Belmontes, while en route, Vasquez handed him the steel bar, which had flesh and hair residue on it, and then Vasquez (not Belmontes) stated that he had had to take out a witness. Belmontes, still wearing his gloves, wiped blood off the bar and set it down on the floorboard. He was uncertain whether there was blood on his pants when he left McConnell's house; he said that the blood might have come off the bar when he placed it on the floorboard. He denied having wiped any blood off of his shoes and asserted that Bolanos and Vasquez told him to throw the bar out his window into the river, and that he complied.

Belmontes concluded his testimony by stating that the three drove to Manuel Vasquez' house, where he changed into a pair of Manuel's pants. Manuel contacted Raul Barron, whom they then met at Irma Vasquez' house. Barron bought the stereo for $100. Bolanos, Vasquez and Belmontes divided the money, bought some beer, and drove to the home of an acquaintance to purchase narcotics.

Belmontes' girlfriend, Barbara Murillo, testified that six months after the murder, she ran into Cobarrubio at the Grape Festival. Murillo believed that Belmontes was the murderer. However, when she asked Cobarrubio for further details about the crime, Cobarrubio claimed that Belmontes had been "set up" because he had no backup in the area, whereas Vasquez had a network of local friends.2

After three hours of deliberation, the jury convicted Belmontes of first degree murder with special circumstances. It also made special findings that Belmontes was the actual killer and that he had the specific intent that death occur.

At the penalty phase, the prosecution introduced minimal aggravating evidence. Detective Holman authenticated two autopsy photographs depicting McConnell's wounds. William Cartwright, manager of a motel in Ontario, California, testified to an incident in early 1979 in which an individual named Rudy met Belmontes at a motel and attempted to sell him a .32 caliber automatic handgun that he had acquired in a burglary. Belmontes reportedly examined the loaded weapon, cocked the trigger, pointed it at Rudy and stated, "I've got it now. Why buy it?" Rudy left the premises and Belmontes retained the weapon.

Steven Cartwright testified that he had a conversation with Belmontes in February 1979 in which Belmontes alluded to the fact that some people were upset with him. As Belmontes talked, he indicated that he had a gun in his belt by slapping his side, and he stated that he was not concerned because he had all the protection he needed. Ron Cutler, a California Youth Authority ("CYA") counselor, testified that he once observed Belmontes swinging a chair as if he were about to hit another ward, but Cutler was able to intervene before a fight ensued. On cross examination, he admitted that Belmontes was significantly smaller than the other youth.

Barbara Murillo testified about a domestic violence incident that occurred when she asked Belmontes to move out of their shared apartment and to give her his keys so he could not come back. During the fight that ensued, Murillo, who was four months pregnant with Belmontes' second child, grabbed a "file" for protection and attempted to phone the police, but Belmontes cut the telephone cord with his knife. Belmontes pushed her and hit her on the head, at one point causing her to drop their infant daughter. He tried to choke her, but they were separated by friends who were present. Murillo fled through a window, but Belmontes dragged her back to the vicinity of the apartment. A neighbor eventually summoned the police, who arrived as Belmontes was leaving the premises.

Finally, the prosecution and defense stipulated that Belmontes entered a plea of no contest in April 1979 to a charge of being an accessory after the fact to voluntary manslaughter. The court refused to allow the prosecutor to introduce evidence that Belmontes had actually murdered the victim, Jerry Howard.3 Consequently, the jury never heard any details of the murder or Belmontes' alleged role in it.

Belmontes' mitigation presentation was also limited in scope, focusing on two themes: his family and personal history and his capacity for rehabilitation and positive institutional adjustment. It was primarily the latter theme that defense counsel pressed upon the jury.

Belmontes' family history was one of poverty and violence. His maternal grandfather, Michael Salvaggio, testified to his daughter's unhappy marriage to Belmontes' father. Salvaggio recounted that his daughter was sixteen when she ran away from home and married Belmontes' father, who was unemployed, refused to support his family, drank to excess, and beat her. Salvaggio said that he was "very close" to his grandson until Belmontes was about thirteen but after that had little contact with him. However, Salvaggio continued, when Belmontes was sixteen and his grandmother lay dying in the hospital, he visited her every day; he also attended her funeral.

Carol Belmontes confirmed that her marriage to Belmontes' father was unhappy. Fernando Belmontes, Sr., was a violent alcoholic who "wouldn't ever work," and who beat her, breaking her arm on one occasion and stabbing her on another. Belmontes was ten years old when the marriage broke up. Mrs. Belmontes remarried. That marriage broke up five years later, when Belmontes was about fifteen, after which he became difficult to control. Belmontes had not lived with his mother since he was committed to the CYA two years before McConnell's murder. He had a younger brother and sister, to whom he was "very close."

Belmontes again testified on his own behalf. He recounted that he had a poor relationship with his father, who often came home drunk and hit his mother. He did not like school and stopped attending in the ninth grade. He wanted to get a job so that he could help his mother pay the bills. Although he described his youth as "pretty hard," he twice stressed that he did not want to "use it as a crutch."

Robert Martinez, a close friend of Belmontes since their early teens, testified that he and Belmontes spent a great deal of time together, usually working on Martinez's low-rider car. Belmontes served as best man at Martinez's wedding and was someone he could turn to for advice and support when he argued with his wife. Martinez also testified that he felt Belmontes was not a violent person. However, with defense counsel's consent, this testimony was struck following an objection from the prosecutor, who argued that if this evidence was admitted, the prosecution should be allowed to impeach Martinez with the evidence regarding the Jerry Howard murder.

More important by far was the second mitigation theme — that Belmontes could lead a positive, constructive life if confined within an institutional setting. The state agrees that Belmontes' counsel, John Schick, presented "substantial evidence" in support of this theme in the form of a series of witnesses who testified to Belmontes' behavior and achievements during his prior CYA incarceration and to the likelihood that he would make positive contributions to the welfare of others if his life was spared. Belmontes himself testified that he was in the custody of the Youth Authority from early 1979 until November 1980, four months prior to the crime. While at the CYA, he was employed on the fire crew at the Pine Grove Camp for one year, during which he worked his way up from last man to number two, a position of leadership and responsibility. Belmontes also testified that during his incarceration he became involved in the M-2 Christian sponsorship program. He admitted that he initially entered the M-2 program as a way to get out of camp, but he explained that he was touched by the decency of his M-2 family, the Haros, and so gradually became curious about Christianity and embraced it.

Belmontes continued by saying that he was paroled from the Youth Authority after serving his maximum sentence; that he stayed at the halfway house in Oakland for two weeks and then went to Southern California for a short period, returning with Murillo to the Lodi area to take a job with the forest service; and that he subsequently moved to Lodi in part so that he could be close to the Haros. However, outside of the institution, Belmontes said, he had trouble maintaining his religious commitment and "started going back to [his] old ways," in part due to "pressure on the streets." At the time of trial, he had not abandoned his religious beliefs but felt that he was no longer "dedicated one hundred percent" to his religious commitment. He testified that he would hope to make positive contributions to society if he were ordered incarcerated, though he had little specific idea of how he might do so.

The Reverend Dale Barrett, chaplain at the Youth Authority's Pine Grove Facility, testified that he knew Belmontes from his participation in the M-2 Christian sponsorship program, which matched a local church-going family with a ward, who would be permitted to leave the facility to visit with the family at specified times each week. Barrett explained that Belmontes was matched with Beverly and Fred Haro and participated in the program for about a year. In addition, Belmontes was baptized during his stay in the CYA. Only a small percentage of program participants who made a serious commitment to Christianity were baptized. Barrett felt that, unlike the many wards who stayed in the program only to get out of camp and manipulate favors from the sponsoring families, Belmontes had not "conned" them. Barrett testified that although he personally believed in the death penalty, he did not think Belmontes deserved to die because he was a "salvageable" person with "a lot of extenuating circumstances in his life." Barrett was of the view that Belmontes' involvement in the McConnell murder was attributable to "the enormity of the peer pressure and the kind of sociological circumstances that were part of his life," and he thought that if Belmontes were granted a life sentence, he would make positive contributions to prison life through his involvement with the prison ministries.

Don Miller, assistant chaplain at the Youth Authority's Preston Facility and the Northern California Director of the M-2 program, testified that he helped place Belmontes in a halfway house in Oakland upon his release from the CYA. Miller stated that, at the time, he felt "a little bit doubtful" about Belmontes' ability to lead a productive life outside of a highly structured environment, like prison. Miller testified that Belmontes stayed at the halfway house for only two weeks before moving to the Lodi area to take a job with the forest service. During those two weeks, however, Belmontes returned to Preston on a few occasions to speak to wards about what life was like "on the outside." Miller described Belmontes (and his message) as well-received by the CYA wards, and he believed that if Belmontes were committed to prison for a life term, he would be good at counseling other prisoners not to make the same mistakes that he had. Miller was enthusiastic about working with Belmontes in this capacity and stated that Belmontes "definitely would be used in the prison system for this kind of activity" because he related well to other prisoners, especially those who shared his ethnic background, and because these kinds of programs were "at the present time the only solution" to the troubling problem of recidivism among prisoners.

Finally, several witnesses offered evidence with respect to Belmontes' conversion to Christianity, which occurred during his first CYA incarceration, and his failure to maintain his religious commitment upon his release. Martinez's wife Darlene, a born-again Christian, testified that she had known Belmontes for six or seven years and considered him a close friend. Darlene recounted that when Belmontes visited them after his release from the Youth Authority, he told her that he was a born-again Christian. He also mentioned his disputatious relationship with his girlfriend, Murillo, and mentioned that he was planning to move in with her. During the conversation, Belmontes expressed concern that Murillo was not a Christian, and he worried that he would be unable to maintain his Christian faith on his own.

Beverly and Fred Haro, Belmontes' M-2 sponsors and members of Reverend Barrett's church, testified that Belmontes spent Wednesday evenings and weekends with them for almost a year. They felt they had a good relationship with Belmontes, who attended church with them. They treated him like their own son, and he opened up to them and was a good influence on their own teenage son. They saw him several times after his release from the CYA. Fred Haro stated that he had "compassion as a son" for Belmontes and that Belmontes had been genuine in his commitment to the M-2 program and his affection for his sponsors. Beverly Haro felt that Barbara Murillo was a "definite negative factor" in Belmontes' life.

At the conclusion of the evidentiary stage, the court permitted Belmontes to address the jury personally during closing arguments. Belmontes stated that he did not think that his difficult childhood excused his role in the McConnell murder. However, he explained that he could not handle the pressures of life outside of an institution, and he asked the jury to give him "an opportunity to achieve goals and try to better [him]self." Belmontes' attorney similarly stressed that Belmontes could not "make it on the outside." He argued that Belmontes had had a hard life but still retained his humanity. He characterized Belmontes as someone who thrived in a structured environment—as evidenced by his accomplishments while in the CYA—and asked the jury to spare Belmontes' life on the ground that he would make positive contributions if allowed to live out his natural life in prison.

The judge instructed the jury according to the then-standard model jury instructions, which directed the jury to consider as mitigating evidence the defendant's age, criminal history, and "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." In addition, the judge read a portion of a supplemental instruction requested by the defense, which stated that the jury should view the statutory factors "merely as examples of some of the factors" that it could consider, that the jury "should pay careful attention to each of these factors," and that "any one of them standing alone" could support a life sentence. The trial judge refused to read the most important part of the requested instruction, which stated: "[Y]ou should not limit your consideration of mitigating circumstances to these specific factors. You may also consider any other circumstances... as reasons for not imposing the death sentence." The jury was not informed that it should consider mitigating evidence bearing on Belmontes' probable future conduct if sentenced to life in prison without the possibility of parole. Shortly after Belmontes' trial, the California legislature revised the model jury instructions to make clear that the jury must consider any aspect of the defendant's character or record offered as a basis for a sentence less than death, "whether or not related to the offense for which he is on trial." CALJIC 8.85(k) (6th ed.1996).

The jury deliberated for a day and a half before reaching a verdict. On the first day, after several hours of deliberations, the jury sent the judge a note asking, "What happens if we cannot reach a verdict?" and "Can the majority rule on life imprisonment?" The jury was brought back to the courtroom, and the judge reread a portion of the jury instructions, emphasizing that "all 12 jurors must agree, if you can." The trial judge refused to tell the jurors what would happen if they could not agree.

The trial judge emphasized that if the jurors "[went] over the instructions again with one another," they might find it easier to reach agreement. The jurors then asked the judge to clarify the instructions on the weighing of the aggravating and mitigating factors. One juror asked the trial judge whether the jury was supposed to take each listed (i.e., statutory) factor, decide whether it was aggravating or mitigating, and then "balance the sheet." Rather than instruct the jurors that it was their duty to consider and, if appropriate, give effect to, all of the mitigating evidence presented by the defendant, whether comprehended by one of the statutory factors or not, the trial judge responded simply, "That is right," even though no statutory factor comprehended the element of rehabilitation. Shortly thereafter, another juror asked whether it was possible for Belmontes to receive psychiatric treatment while in prison. The trial judge responded, "That is something you cannot consider in making your decision." Following this colloquy, the jury returned a death sentence.

The California Supreme Court affirmed Belmontes' conviction and sentence in 1988, People v. Belmontes, 45 Cal.3d 744, 248 Cal.Rptr. 126, 755 P.2d 310 (1988), and the U.S. Supreme Court denied certiorari in early 1989. Belmontes then filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California, which was held in abeyance while Belmontes exhausted state remedies.

Belmontes filed a state habeas petition and received a stay of execution from the California Supreme Court. The California courts summarily dismissed Belmontes' petition, refusing him compulsory process and denying him an evidentiary hearing on any of his claims. The California Supreme Court finally denied relief in 1992.

In 1993, proceedings on the federal writ commenced before a magistrate judge. In 1996, he denied Belmontes' request for an evidentiary hearing on certain claims but granted his motion to expand the record to include depositions, declarations, and reports submitted by the parties. The parties filed cross motions for summary judgment. In 2000, the district court withdrew the referral from the magistrate judge and, in August of that year, denied relief on all claims except six that had not yet been briefed. The court referred those six claims to the magistrate judge for a recommendation. In January 2001, the magistrate judge recommended denying the outstanding claims, and in May 2001, the district court adopted the magistrate's findings and recommendations, denied the petition, and entered judgment against Belmontes. The district court issued a Certificate of Appealability for fifteen constitutional claims. This appeal timely followed.

Because Belmontes filed his habeas petition prior to AEDPA's effective date, we apply pre-AEDPA standards of review. Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 1401, 155 L.Ed.2d 363 (2003). State court factual findings are presumed correct unless one of eight enumerated exceptions applies. See 28 U.S.C. § 2254(d) (1994). The application of law to historical facts is reviewed de novo. Thompson v. Borg, 74 F.3d 1571, 1573 (9th Cir.1996).

Belmontes alleges that the state deprived him of due process by failing to disclose that Bolanos had several misdemeanor charges and that the prosecutor personally helped him achieve favorable dispositions on those charges. In a closely related claim, he contends that the prosecutor violated due process by failing to correct Bolanos' false and misleading testimony that he had never been "busted" before his arrest for the McConnell murder.

On the Wednesday morning before the murder, Bolanos drove into a traffic signal on his way home from McConnell's house. A police officer witnessed the accident. After flunking a field sobriety test, Bolanos was taken into custody and charged with various misdemeanor driving offenses, including DUI and hit-and-run.

One week later, Bolanos was charged with first degree murder for his role in the McConnell murder. He soon entered into an agreement in which he pled guilty to second-degree burglary in exchange for testifying against Vasquez and Belmontes. He was granted immunity for his testimony and his sentence was left to the court's discretion. He received no explicit promises of leniency from the prosecution.

After Bolanos pled guilty to the burglary, he obtained a string of unusually favorable dispositions on several traffic offenses. First, with respect to the DUI/hit-and-run charges, his attorney appeared in municipal court along with Clark Sueyres, the district attorney who was prosecuting the case against Belmontes. On Sueyres' motion, the charges were dismissed in the interest of justice. Next, later that year, Bolanos was cited for driving an unregistered vehicle and driving with a suspended license. He was allowed to plead guilty to the lesser charge of driving without a valid license and assessed a $100 fine; the court dismissed the unregistered vehicle charge. The following April, Bolanos was again cited for driving an unregistered vehicle, driving with a suspended license, operating an unsafe vehicle, and driving with worn tires. Again, Sueyres personally asked the municipal court to dismiss the charges in the interest of justice. Bolanos, once again, pled guilty to driving without a valid license and paid a $75 fine. None of these matters was disclosed to the defense.

At trial, Bolanos admitted on cross-examination that he was testifying under court order in exchange for a grant of immunity and that he would face a murder charge if he refused to testify. However, Schick's efforts to impeach Bolanos were hampered by the fact that Bolanos continually minimized both his own culpability and the benefits he received from the prosecution in exchange for his testimony. For example, Bolanos told the jury that his motive in testifying was "to tell the truth," and he stated that because he "wasn't even around when the crime happened," he did not view the grant of immunity as a particular favor.

In addition, Bolanos was less than truthful when he testified about his prior contacts with law enforcement. When Schick questioned Bolanos about prior inconsistent statements that Bolanos had made to the police, Bolanos explained them by saying that he had made mistakes out of nervousness because it was "the first time I got busted." In fact, Bolanos had been "busted" twice before. In addition to the DUI/hit-and-run incident, Bolanos had previously been arrested for gun possession by Detective Holman, the same officer who arrested him for the McConnell murder. The arrest generated formal criminal charges, and Bolanos was sentenced to thirty days in a juvenile facility, of which he served fifteen.

The prosecution has an affirmative duty to turn over to the defense all evidence favorable to the accused, including impeachment evidence. Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The failure to disclose favorable evidence violates due process when the evidence is material. United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Singh v. Prunty, 142 F.3d 1157, 1161 (9th Cir.1998). Evidence is material if there is a reasonable probability that, had it been disclosed to the defense, the outcome of the trial would have been different. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. A reasonable probability occurs when the suppression "undermines confidence in the outcome of the trial." Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (internal quotation marks omitted).

Belmontes argues that the prosecutor violated due process by failing to turn over material impeachment evidence consisting of the existence and unusual disposition of Bolanos' misdemeanor traffic offenses. The state responds that the prosecutor had no duty to disclose this evidence because the misdemeanor violations were not mentioned in the plea agreement and were not dismissed as consideration for Bolanos' testimony against Belmontes. In support of this argument, the state cites the deposition testimony of both Bolanos and his attorney to the effect that they did not perceive the dismissal of the traffic offenses as related to the immunity deal.

The state's argument is without merit. We have held that when the state relies on the testimony of a criminal informant, it has an obligation to disclose "all information bearing on that witness's credibility," including "the witness's criminal record... and any information therein which bears on credibility." Carriger v. Stewart, 132 F.3d 463, 480(9th Cir.1997). We further emphasized the importance of this rule in Benn v. Lambert, in which we held that "the state cannot satisfy its Brady obligation to disclose exculpatory and impeachment evidence by making some evidence available and asserting that the rest would be cumulative. Rather, the state is obligated to disclose all material information casting a shadow on a government witness's credibility." 283 F.3d 1040, 1057-58 (9th Cir.2002) (internal quotation marks omitted). Here, the fact that the prosecutor personally appeared in municipal court to argue for favorable dispositions of Bolanos' misdemeanor traffic offenses casts a shadow on Bolanos' credibility regardless of whether such intervention was mentioned in the plea agreement or offered as consideration for Bolanos' testimony. Had defense counsel known about the existence and disposition of the misdemeanor offenses, he could have impeached Bolanos by showing that he had a motive to say what the prosecution wanted to hear in hopes of obtaining a lighter sentence on his plea to second degree burglary. Even though Bolanos was not explicitly promised leniency, the fact that the prosecutor helped Bolanos obtain dismissals or reduced punishments on his traffic misdemeanors makes it more likely that he would intercede on Bolanos' behalf when it came time for sentencing on the burglary charge. Thus, the evidence was clearly relevant and admissible for purposes of impeachment, and the district attorney should have disclosed it.

Nevertheless, we hold that Belmontes' Giglio claim fails because, under the particular facts and circumstances of this case, the undisclosed evidence was not material. This case presents different circumstances from those in Benn, in which we held that the prosecutor's dispensation of similar favors on behalf of his star witness — including quashing a traffic ticket, dismissing a burglary charge, and postponing the filing of an arrest warrant until after Benn's trial — were material benefits. Id. In Benn, we held that the failure to disclose these benefits necessitated a new trial, even though the prosecutor disclosed that he had made a deal with the informant to seek a reduced sentence in exchange for his testimony against Benn, and defense counsel impeached the informant on this point. Id.

Aside from the fact that the undisclosed benefits in Benn may well have been more substantial than those at issue here, Benn is distinguishable for three reasons. First, Bolanos was actually involved in the McConnell murder, whereas the informant in Benn was a jailhouse snitch. Evidence that a jailhouse snitch received material benefits from the prosecution is especially important because without that evidence the informant masquerades as a disinterested observer. See United States v. Bernal-Obeso, 989 F.2d 331, 333-34 (9th Cir.1993) (describing practice of relying on criminal informants as "fraught with peril"). In this case, however, Bolanos was cross-examined extensively as to his role in the crime and the details of his immunity agreement, so the jury could not possibly have viewed him as disinterested. Second, the impeachment evidence that was disclosed in Benn was relatively trivial; although the informant received sentencing leniency in his unrelated case, the leniency saved him only thirty-five days of jail time. Benn, 283 F.3d at 1057. Accordingly, "the number and nature of the undisclosed benefits was such that they would have impeached [the witness] more effectively" than the benefits that were disclosed. Id. at 1058. By contrast, in the present case the impeachment evidence that was disclosed was substantial: an agreement allowing Bolanos to plead guilty to second-degree burglary and receive immunity for the murder in exchange for his testimony. Finally, in Benn the prosecutor effectively downplayed the importance of the impeachment evidence in his closing argument. Id. (quoting prosecutor's argument that "[t]he reward he got was that in a 6 to 12 month sentence, he got six months instead of nine months. Big reward."). In this case, however, the prosecutor argued that the jury should view Bolanos' testimony critically, and the jury was so instructed. For these reasons, we conclude that Benn does not control our analysis here.

Here, the undisclosed benefits were not material because there is not a reasonable probability that the outcome of the trial would have been different if defense counsel had known about them. In making this judgment, we realize that Belmontes need not pass a sufficiency of the evidence test. Kyles, 514 U.S. at 434, 115 S.Ct. 1555. "However, our fundamental concern remains whether there exists a reasonable probability that given disclosure of the evidence of benefits to[the witness], one or more members of the jury would have viewed[his] testimony in a different light." Singh, 142 F.3d at 1163. In this case, Bolanos was impeached with his immunity agreement, including the fact that the charges filed against him were substantially lower than the evidence would have warranted. The withheld evidence would not have added much, if anything. Moreover, Bolanos' testimony was corroborated by that of several other witnesses, including disinterested witnesses like Lucy Flores and Barbara Murillo, who were not involved in the crime or related to the codefendants. Belmontes' testimony to the contrary was uncorroborated and did not hold up well under cross-examination. Had Bolanos' testimony been less well-supported or the undisclosed benefits been greater, or had the prosecutor not urged and the judge not instructed the jury to view his testimony with suspicion, we might conceivably have reached a different conclusion. Nevertheless, given the extent of the corroborating evidence, the relative unimportance of the undisclosed benefits as compared to those that were disclosed, and the nature of the prosecutor's statement, we cannot say that the jury would have viewed Bolanos' testimony in a different light had it known that the prosecutor had helped him to quash his misdemeanor traffic offenses or obtain lighter punishment on them. In short, the undisclosed benefits do not undermine our confidence in the verdict. In these circumstances, we hold that the withheld evidence was not material, and the claim must, therefore, be denied.

Belmontes also argues that the prosecution violated his due process rights by failing to correct Bolanos' false assertion that he had never been "busted" before. The prosecutor has an independent, constitutional duty to correct testimony he knows to be false. Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); N. Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir.2001). If there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury," the conviction must be set aside. United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

The state argues that the prosecution had no duty to correct the record because defense counsel was notified of the drunkdriving arrest at a pretrial hearing. Whether defense counsel is aware of the falsity of the statement is beside the point. The state overlooks the fact that the prosecutor's duty to correct false testimony arises, not simply out of a duty of fairness to the defendant, but out of "the free standing constitutional duty of the State and its representatives to protect the system against false testimony." Bowie, 243 F.3d at 1118. Therefore, regardless of whether defense counsel should have known that a state witness testified falsely, "[a] prosecutor's `responsibility and duty to correct what he knows to be false and elicit the truth,' Napue, 360 U.S. at 269-70, 79 S.Ct. 1173, 3 L.Ed.2d 1217, requires [him] to act when put on notice of the real possibility of false testimony." Id.

The state also contends that the prosecution had no duty in this case because the word "busted" is ambiguous, and therefore Bolanos may not have testified falsely at all. We do not find the word "busted" to be ambiguous. See Webster's New World Dictionary 189 (3d college ed.1988) (defining "bust" as "to arrest"). In this case, the prosecutor knew that Bolanos had been "busted" twice before: once for DUI/hit-and-run and once for gun possession. He had an independent duty to correct the false testimony and elicit the truth.

If there were any reasonable likelihood that Bolanos' false testimony could have affected the judgment of the jury, we would be compelled to grant the petition with respect to this claim. Belmontes argues that a reasonable likelihood exists, pointing to the fact that the "first time I got busted" comment arose at a crucial part of defense counsel's cross-examination. Bolanos used this false statement to explain his prior inconsistent statements on two critical points: the length of time Vasquez spent in the house and the alleged knocking noise that Bolanos heard when he got out of the car to open the trunk. He stated that he was nervous when he made the prior inconsistent statements to the officer because he had never been busted before. The testimony that was inconsistent was important because it tended to incriminate Belmontes and exculpate Vasquez by suggesting that McConnell was killed before Vasquez entered the house; it also was not directly corroborated by any other witness. Conceivably, if the jury knew that Bolanos had lied when trying to explain his prior inconsistent statements on these points, it could have concluded that Bolanos was lying about the timing and the knocking noise, either to please the prosecution or to protect Vasquez. The jury then would have been more likely to believe Belmontes' testimony that Vasquez was the actual killer.

Ultimately, however, we do not believe that Bolanos' false testimony regarding the absence of prior arrests could have affected the judgment of the jury. As we explained, his testimony regarding the events surrounding the murder was in most respects corroborated by independent witnesses. Furthermore, the most damaging testimony of the trial came from Belmontes himself. On cross-examination, Belmontes conceded that for his version of events to be true, Vasquez would have had to have come directly from the car to the door without attempting to open the trunk, and there is direct evidence to the contrary from a disinterested eyewitness. Moreover, Belmontes refused to say that he had seen or heard Vasquez hitting McConnell, and he could not explain how Vasquez would have had enough time to both murder McConnell and ransack the front bedroom. Finally, Belmontes, but not Vasquez, had blood sprinkled on his clothes and shoe. On this record, we hold that there is no reasonable likelihood that Bolanos' false testimony that his arrest in connection with the McConnell murder was "the first time I got busted" would have affected the judgment of the jury. We therefore deny relief on this claim.

Belmontes contends that he was deprived of due process and the effective assistance of counsel due to a conflict of interest arising from Schick's multiple prior representations of Vasquez. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). At the heart of the claim is the allegation that Schick, because of the conflict of interest, did not offer evidence of Vasquez's violent criminal history in support of his defense theory that Vasquez was the actual killer.4 Belmontes argues that this evidence was relevant and admissible for two purposes: first, to show that Vasquez was, in fact, the actual killer; and second, to impeach Bolanos' credibility by showing that his fear of retaliation by Vasquez caused him to place the blame on Belmontes, rather than on the true murderer.

During pretrial proceedings, Vasquez's attorney brought a motion to recuse Schick as counsel for Belmontes. The motion was based on the fact that Schick's law firm had represented Vasquez in a 1979 murder case; Vasquez's attorney feared that Schick had confidential information that he would use against Vasquez as part of his defense theory that Vasquez was the actual killer.5 Schick opposed the motion and filed a declaration in which he stated: (1) the attorney who represented Vasquez in 1979 had since left the firm; (2) the case against Vasquez was dismissed prior to trial; (3) he himself had acquired no confidential communications from Vasquez; and (4) the case file had been destroyed eight months earlier. The trial judge held a hearing and, based on these facts, denied the motion. The judge asked Belmontes if he wished to retain Schick as his lawyer, knowing that Schick's firm had previously represented Vasquez. Belmontes said that he did.

In postconviction proceedings, Belmontes' attorneys learned that Schick's connection to Vasquez was, in fact, much more extensive than he had disclosed to either Belmontes or the trial court. Prior to entering private practice, Schick and the members of his criminal defense firm had worked at the local public defenders' office. There, Schick and the members of his firm represented Vasquez on three occasions in addition to the 1979 murder charge. In August 1974, Schick had himself represented Vasquez on a gun possession charge; he had helped Vasquez negotiate a guilty plea. In November 1974, Patrick Riddle, a partner in Schick's law firm, had represented Vasquez on a rape charge.6 In January 1976, Douglas Jacobsen, the third partner in Schick's firm, had represented Vasquez in a purse-snatching case that went to jury trial. Schick did not notify Belmontes or the court of these incidents of representation even though he remembered them at the time of the recusal motion.

In 1994, Schick signed another declaration with respect to the conflict of interest claim. In that declaration, he averred that at the time of the recusal motion, he saw no relationship between any of Vasquez's prior cases and the McConnell murder. He asserted that his representation of Belmontes was not inhibited by his prior resentation of Vasquez and that his loyalty to Belmontes was complete and undivided. Schick stated that he considered calling Vasquez as a witness and would have been prepared to cross-examine him fully had he taken the stand. However, he also admitted that he did not investigate Vasquez's violent criminal history even though doing so would have been helpful to Belmontes' defense. Schick stated that he did not make a tactical decision not to pursue this investigation. He explained that his normal procedure is to investigate the criminal record of a potential witness; however, he did not consider Vasquez a potential witness until after he had entered a guilty plea.

Schick testified at his deposition that he knew that he had a continuing duty of loyalty to Vasquez, but he did not view Belmontes' defense as conflicting with that duty in any way. However, Schick admitted that he knew that the district attorney could revive the 1979 murder charge against Vasquez at any time (although he also stated that it never crossed his mind that the prosecution would do so as a result of any evidence Schick presented at Belmontes' trial). In addition, Schick recognized that even though Vasquez entered his guilty plea prior to Belmontes' trial, Vasquez had an ongoing liberty interest in being viewed as an aider and abettor in the McConnell murder, and not the actual killer.

At the outset, we dispose of the state's procedural objections to the claim. The state first contends that the claim is unexhausted because Belmontes did not present to the California Supreme Court all of the facts underlying the claim. This argument fails because "new factual allegations do not render a claim unexhausted unless they `fundamentally alter the legal claim already considered by the state courts.'" Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir.1994) (quoting Vasquez v. Hillery, 474 U.S. 254, 260, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)). Here, although the additional facts add some evidentiary support to the claim, they do not "fundamentally alter" it. See Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.1999) (holding that jury misconduct claim was properly exhausted when petitioner presented incidents of improper jury contact that differed in number, but not in kind, from what was presented to state courts). The essential factual and legal theories are the same as those presented to the California courts. Therefore, Belmontes adequately exhausted the claim.

Next, the state argues that the claim is barred by the Teague nonretroactivity doctrine. See Teague v. Lane, 490 U.S. 1031, 109 S.Ct. 1771, 104 L.Ed.2d 206 (1989). The government bases this argument on the Supreme Court's recent statement that, as far as its own precedent is concerned, the question whether Cuyler extends to cases of successive representation is still open. Mickens v. Taylor, 535 U.S. 162, 175-76, 122 S.Ct. 1237, 1246, 152 L.Ed.2d 291 (2002). However, we have held that circuit court holdings suffice to create a "clearly established" rule of law under Teague. Bell v. Hill, 190 F.3d 1089, 1091 (9th Cir.1999). In this circuit, it was well-established at the time that Belmontes' conviction became final that conflicts of constitutional magnitude can arise from cases of successive representation. See, e.g., Mannhalt v. Reed, 847 F.2d 576, 579 (1988); United States v. Wheat, 813 F.2d 1399, 1402 & n. 1 (9th Cir.1987), aff'd on other grounds, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Accordingly, the conflict claim is not Teague-barred.

We also hold that Belmontes' purported waiver of the conflict of interest was invalid. "For a waiver to be knowing and intelligent, the defendant must have been sufficiently informed of the consequences of his choice." Lockhart v. Terhune, 250 F.3d 1223, 1232 (9th Cir.2001) (internal quotation marks and citations omitted). Here, Schick failed to inform Belmontes or the court of the extent of his prior relationship with Vasquez. In addition, neither Schick nor the trial judge explained to Belmontes that Schick owed a continuing duty of loyalty to Vasquez, a duty that could potentially conflict with Belmontes' defense theory — that Vasquez was McConnell's actual killer. Under these circumstances, we conclude that Belmontes was not sufficiently informed of the consequences of his choice, and his waiver was therefore invalid. See Lockhart, 250 F.3d at 1232-33, citing United States v. Curcio, 680 F.2d 881 (8th Cir.1982) (holding that waiver was ineffective when the defendant was informed of possible conflict due to attorney's prior representation of codefendant and told that conflict may arise from prior confidential communications, but not told that conflict may arise from attorney's continued loyalty to codefendant).

To establish a Sixth Amendment violation based on conflict of interest, the defendant must show that an actual conflict of interest adversely affected his lawyer's performance. Cuyler, 446 U.S. at 338, 100 S.Ct. 1708; Mannhalt, 847 F.2d at 579. Generally, it is more difficult to demonstrate an actual conflict resulting from successive, rather than simultaneous, representation. Mannhalt, 847 F.2d at 580. Conflicts of interest based on successive representation may arise if the current and former cases are substantially related, if the attorney reveals privileged communications of the former client, or if the attorney otherwise divides his loyalties. Id. Ultimately, however, an actual conflict of interest is one "that affected counsel's performance — as opposed to a mere theoretical division of loyalties." Mickens, 122 S.Ct. at 1243. In other words, the simple "possibility of conflict is insufficient to impugn a criminal conviction." Cuyler, 446 U.S. at 350, 100 S.Ct. 1708.

We must decide whether the potential conflict of interest engendered by Schick's prior representation of Vasquez ripened into an actual conflict. We begin by noting that there is no suggestion that Vasquez's prior cases were substantially related to the McConnell murder or that Schick was in possession of privileged communications from Vasquez. Therefore, if Belmontes is to demonstrate an actual conflict, he must show that Schick "divide[d] his loyalties" between Vasquez and Belmontes. Fitzpatrick v. McCormick, 869 F.2d 1247, 1252 (9th Cir.1989), citing Mannhalt, 847 F.2d at 580. In engaging in this inquiry, we look beyond Schick's protestations to the contrary to see whether independent evidence in the record supports the allegation of divided loyalties. United States v. Shwayder, 312 F.3d 1109, 1119 (9th Cir.2002) ("Human self-perception regarding one's own motives for particular actions in difficult circumstances is too faulty to be relied upon, even if the individual reporting is telling the truth as he perceives it."); Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir.1994) ("The existence of an actual conflict cannot be governed solely by the perceptions of the attorney; rather, the court itself must examine the record to discern whether the attorney's behavior seems to have been influenced by the suggested conflict.").

After a careful examination of the record, we find no evidence that Schick divided his loyalties between Vasquez and Belmontes. Indeed, Belmontes' entire defense was that Vasquez was the killer. This case is thus distinguishable from cases like Lockhart, Sanders, and Fitzpatrick, all of which addressed situations in which defense counsel sabotaged their current clients' case by refusing to raise the obvious defense that a former client was actually responsible for the murder. See Lockhart, 250 F.3d at 1230-31 (where the evidence showed that the same person had committed both an earlier murder and the murder for which defendant was on trial, defendant's trial counsel refused to present evidence that his former client had committed the earlier murder); Sanders, 21 F.3d at 1453(defense counsel successively represented two brothers who were accused of the same murder; the first brother confessed his guilt to defense counsel, who advised him to take the Fifth at his brother's trial; at the trial, defense counsel put forth an unconvincing alibi defense rather than evidence that the first brother had committed the murder); Fitz-patrick, 869 F.2d at 1251-52(defense counsel refused to present defense that a former client actually committed the murder; because of the prior attorney-client relationship, defense counsel believed in the former client's innocence to the detriment of his current client).

Belmontes argues nevertheless that an actual conflict of interest affected Schick's performance at his trial. According to Belmontes, even though Schick argued that Vasquez was the killer, he failed to support this theory with hard evidence. Belmontes asserts that Schick should have investigated Vasquez's lengthy criminal record and presented it as evidence that Vasquez was the actual killer. He also asserts that Schick should have impeached Bolanos by showing that he was in fear for his life due to death threats issued by Vasquez and thus had a powerful motive to falsely shift the blame from Vasquez to Belmontes. Belmontes argues that the only possible explanation for these lapses on Schick's part is that he felt bound by a continuing duty of loyalty to Vasquez, and that this duty required him to refrain from presenting evidence that could have resulted in the revival of the 1979 murder prosecution or impaired Vasquez's prospects for an early parole on his second degree murder conviction in the current case.

We are of the view, however, that these alleged failings are too speculative to sustain a conflict of interest claim. This is not a case in which Schick failed to present evidence that went directly to Vasquez's — and therefore Belmontes' — guilt or innocence. Rather, Schick sought squarely to place the blame on Vasquez, and did not overlook any direct evidence on that point. He simply failed to investigate and present evidence of Vasquez's prior bad acts, which, if admissible, might have marginally affected whether a jury would have had a reasonable doubt as to Belmontes' guilt. Given the absence of evidence suggesting that Vasquez was the actual killer and given the damaging nature of Belmontes' own conflicting statements, any counsel might have failed to investigate and offer evidence regarding Vasquez's criminal history. In short, we hold that this failure, standing alone, is not enough to show that Schick divided his loyalties between Vasquez and Belmontes. It is not "likely" that a conflict caused Schick to handle Belmontes' case as he did. See United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir.1992). Thus, Belmontes has not shown that he was deprived of his Sixth Amendment rights by an actual conflict of interest.

Belmontes argues that the prosecutor violated his due process rights by introducing into evidence his involuntary, inculpatory statements. However, Belmontes testified in his deposition that he spoke to the police freely and voluntarily. There was no due process violation here.

Belmontes claims that his trial counsel was constitutionally ineffective for failing to challenge his arrest warrant. He argues that the warrant in his case was facially insufficient to support a finding of probable cause because nothing in the warrant corroborated the allegation that Belmontes himself, as opposed to Bolanos, was involved in the crime.7

In order to prevail on his ineffectiveness claim, Belmontes must show that: (1) his trial counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy Strickland's prejudice prong in a Fourth Amendment context, Belmontes must demonstrate a reasonable probability that a motion to suppress would have succeeded and that the suppression of the warrant would have led to a different outcome at the trial. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). The reasonableness of counsel's performance is evaluated from counsel's perspective at the time of the alleged error. See id. at 384, 106 S.Ct. 2574.

At the time of Belmontes' trial, the federal Aguilar-Spinelli test applied to affidavits supporting warrant applications. Aguilar-Spinelli did not require independent corroboration of the facts set forth in the affidavit. Rather, under Aguilar-Spinelli, the affidavit on its face had to provide enough information so that a magistrate could determine: (1) that the informant was reliable (the "veracity" prong); and (2) that his information was dependable (the "basis of knowledge" prong). Sprinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Larkin, 510 F.2d 13, 15 (9th Cir.1974). Under federal law, the affidavit met both prongs. Because the affidavit stated that Bolanos acquired his information through first-hand observation, it satisfied the "basis of knowledge" prong, Aguilar, 378 U.S. at 114, 84 S.Ct. 1509, and because it contained a statement against penal interest, it satisfied the veracity prong. United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (holding that, in most cases, statements against penal interest are inherently reliable); but see United States v. Hall, 113 F.3d 157, 159 (9th Cir.1997) (declining to apply Harris to accomplice informant because "once a person believes that the police have sufficient evidence to convict him, his statement that another person is more important to his criminal enterprise than he gains little credibility from its inculpatory aspect").

Nor would the claim have had a reasonable probability of success under California law. According to the California Supreme Court, the affidavit contained sufficient corroboration to support a finding of probable cause:

The circumstances of the crime and evidence found at the crime scene — as summarized in the affidavit — corroborated Bolanos' statement.... [T]rial counsel could reasonably have concluded that the affidavit contained sufficient corroboration of Bolanos's hearsay statement; that the arrest warrant thus issued on probable cause; and that a de novo motion to quash the warrant would have proved futile.

People v. Belmontes, 45 Cal.3d 744, 768, 248 Cal.Rptr. 126, 755 P.2d 310 (1988). We are bound by statements of the California Supreme Court as to California law. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385, (1991) ("[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions."). Accordingly, we must conclude that Schick would not have had a reasonable probability of success in challenging the arrest warrant. Thus his failure to challenge the warrant does not constitute ineffective assistance of counsel.

Belmontes also alleges that material omissions in the affidavit caused the magistrate to issue a warrant for which there was no probable cause. See Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Under Franks, if a criminal defendant establishes by a preponderance of the evidence that an officer recklessly omitted material information from the affidavit, and if the affidavit considered with the omitted evidence is insufficient to establish probable cause, then the "warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking." Id.

On appeal, Belmontes did not specify what evidence was omitted from the warrant, but he did refer to the California Supreme Court opinion, which described four categories of evidence: (1) The affiant, a police officer, was familiar with Vasquez's violent history but did not know Belmontes; (2) Bolanos's car had been identified at the scene of the crime; (3) Bolanos offered his statement only after his car was impounded and his girlfriend had incriminated him; and (4) at first, Bolanos lied when speaking to the police. Belmontes, 45 Cal.3d. at 769, 248 Cal.Rptr. 126, 755 P.2d 310. Three of these omitted facts cast aspersions on Bolanos' credibility because they highlight his strong motive to shift the blame for McConnell's death to someone else. The fourth is plainly of no relevance. As to the three, the face of the affidavit makes clear that Bolanos was Mirandized, which itself indicates that Bolanos was a suspect in the crime. The omitted details add more color to Belmontes' claims, but they do not change the basic calculus involved in determining Bolanos' reliability. Accordingly, they are not material, and the Franks claim must be denied.

Belmontes asserts that the prosecutor violated his due process rights by cross-examining him as to his post-arrest silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). However, the Supreme Court has held that Doyle does not apply to a defendant who has waived his Miranda rights and voluntarily given a statement to the police. Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980). Belmontes testified in his deposition that he understood his Miranda rights, waived them, and spoke freely and voluntarily to the police. No Doyle error occurred.

F. Unconstitutional Restriction on Cross-Examination

Belmontes contends that the trial judge violated his Sixth Amendment rights by unconstitutionally restricting his cross-examination of Karrie Lynn Vasquez, Vasquez's wife. Ms. Vasquez testified that she saw Belmontes take the iron bar from the kitchen and heard him admit to killing McConnell. Defense counsel sought to impeach her testimony by demonstrating that she was lying in order to increase Vasquez's chances at an early parole by emphasizing Belmontes' greater culpability. This strategy was foiled because the trial judge refused to allow defense counsel to question Ms. Vasquez as to her knowledge of the length of Vasquez's sentence.

The Confrontation Clause protects a defendant's right to cross-examine witnesses as to potential bias. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). However, the trial judge retains considerable latitude to impose reasonable limits on cross-examination based on harassment, prejudice, confusion of the issues, and relevance. Id. Any error is subject to harmless error review. Id. at 684, 106 S.Ct. 1431.

Despite the fact that the trial judge prevented defense counsel from exploring Ms. Vasquez's bias with respect to the length of Vasquez's sentence, defense counsel cross-examined her extensively and effectively. Defense counsel elicited testimony that Ms. Vasquez had known her husband for eight years, bore his child, stayed with him in spite of his frequent infidelity, married him while he was in prison for the McConnell murder, and visited him in jail every weekend. The jury thus had ample reason to believe that Ms. Vasquez was biased in favor of her husband. In addition, counsel forced Ms. Vasquez to admit that, although she had been questioned extensively during the police investigation, it was not until the day before Belmontes' trial that she first claimed to have heard him admit to the crime. This testimony strongly suggested that Ms. Vasquez was lying about what she claimed to have heard. Ms. Vasquez could not have been impeached much more effectively.

In light of the extensive and effective cross-examination that occurred, and the minimal amount of additional force the excluded material would have added, the error, if any, could not have had a substantial and injurious effect on the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Accordingly, we deny relief on this claim as well.

Belmontes argues that his trial was rendered fundamentally unfair by the introduction of hearsay and double-hearsay statements supporting Bolanos' testimony that Belmontes was the actual killer. However, the California Supreme Court held that these statements were properly admitted prior consistent statements. We are bound by the opinion of the California Supreme Court in these matters of state law. Estelle, 502 U.S. at 67-68, 112 S.Ct. 475. As the Court has stated, "the Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). Here, the statements added little and did not render the trial fundamentally unfair.

Belmontes also challenges an instruction directing the jury not to speculate as to why other individuals involved in the crime were not on trial along with Belmontes. He claims that this instruction prevented the jury from considering the impact of Bolanos' immunity agreement on his credibility. We must determine "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72, 112 S.Ct. 475 (internal quotation marks omitted). We conclude that it did not, because the jury was also instructed that it should view Bolanos' testimony with suspicion due to his involvement in the crime. Accordingly, we deny this claim also.

Belmontes alleges that he was deprived of a jury comprised of a fair cross-section of the community because of the systematic exclusion of minority jurors from the venire. However, he provides no statistical data in support of his claim. Belmontes' claim is thus barred by our decision in Thomas v. Borg, 159 F.3d 1147 (9th Cir.1998). In that case, the petitioner argued that we should excuse his failure to provide the necessary statistical evidence because his trial counsel was constitutionally ineffective for failing to preserve it. Id. at 1150. We held:

[F]or purposes of our fair cross-section analysis, the reason for Thomas' lack of evidence is immaterial. Because Thomas has provided us with insufficient statistical evidence to determine whether blacks were substantially underrepresented on jury venires or panels in Kern County at the time of his trial, his Sixth Amendment fair cross-section claim must be denied.

Id. at 1150-51. Applying Thomas to the facts of this case, we must deny the claim.

Belmontes contends that the district court erred in denying him an evidentiary hearing on his juror misconduct claims. A habeas petitioner must meet two conditions to be entitled to a federal evidentiary hearing: He must (1) allege facts which, if proven, would entitle him to relief, and (2) show that he did not receive a full and fair hearing in a state court, either at the time of the trial or in a collateral proceeding. Id. at 1126-27. A petitioner who meets these conditions must receive a hearing. See, e.g., Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (holding that because prisoner diligently pursued claim in state court, and was denied a hearing, he was entitled to a hearing in federal court); United States v. Navarro-Garcia, 926 F.2d 818, 822 (9th Cir.1991) ("Unless the court is able to determine without a hearing that the allegations are without credibility or that the allegations if true would not warrant a new trial, an evidentiary hearing must be held.").

Belmontes first asserts that the jurors based their decision on the view that "life without possibility of parole did not mean that Belmontes would spend the rest of his life in prison." Belmontes is not entitled to relief on this claim because it concerns intrinsic jury processes. "[I]ntrinsic jury processes will not be examined on appeal and cannot support reversal." United States v. Bagnariol, 665 F.2d 877, 887 (9th Cir.1981).

Belmontes next alleges that the jurors had improper contacts with members of the victim's family. He bases this contention on an excerpt from the record in which the trial court reprimanded one of the jurors for talking to the victim's father about motorcycles. After the reprimand, the trial court conducted a hearing and determined that the juror was not biased as a result of his contact with the victim's father. Belmontes does not assert either that the hearing was not full or that it was not fair. Nor does he assert that he has any newly discovered evidence. Accordingly, he is not entitled to a federal evidentiary hearing on this claim.8

Third, Belmontes asserts that several jurors prejudged his guilt and engaged in premature deliberations. However, even assuming that the jurors did the latter, Belmontes would not necessarily be entitled to relief. See, e.g., United States v. Klee, 494 F.2d 394, 396 (9th Cir.1974) (denying motion for new trial even though jurors discussed the case during breaks and expressed premature opinions about the defendant's guilt). A petitioner must allege facts which, if proved, would show that the premature deliberations prejudiced him to the extent that he did not receive a fair trial. United States v. Hendrix, 549 F.2d 1225, 1229 (9th Cir.1977). Belmontes has not done so here; indeed, he has not alleged any facts other than that premature deliberations took place.

As to the alleged juror prejudgment, in his Amended Petition for Writ of Habeas Corpus, Belmontes contends that "[a] sitting juror remarked, `Here comes the killer,' whenever petitioner was brought into court." While this claim, if true, might possibly entitle him to relief, see Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir.1998) (en banc) ("The bias or prejudice of even a single juror would violate [a criminal defendant's] right to a fair trial."), Belmontes did not include the issue in his request for an evidentiary hearing or present any facts that would entitle him to relief. Accordingly, the district court did not err in failing to afford him a hearing on that claim.

Because Belmontes has not alleged facts that, if true, would entitle him to relief, we affirm the district court's denial of an evidentiary hearing on his jury misconduct claims.

Belmontes alleges that the charging decision in his case violated the Eighth Amendment and the Equal Protection Clause because it was infected by racial discrimination against defendants whose victims were white. In support of his claim, Belmontes relies on an expert report prepared by Richard Berk, a well-respected professor of sociology and statistics at the University of California, Los Angeles. Berk analyzed prosecutors' charging decisions in 122 death-eligible homicides committed in San Joaquin County from August 1977 through 1986.9 In order to describe accurately the role of race and ethnicity in death penalty charging, he coded data for over 450 variables. After running numerous logistic regression tests, Berk concluded that the odds of being charged with special circumstances varied significantly according to the race of the victim. A defendant who killed a white person was five times more likely to be charged with special circumstances than a defendant who killed an African American and twenty times more likely to be charged than if the victim were Latino. Predictably, however, the government's experts reviewed Berk's report and the underlying data and opined that the data did not reveal a pattern of discriminatory charging in San Joaquin County. For the purposes of this opinion, we assume the accuracy and statistical validity of the Berk report.10

Belmontes' claim of discriminatory charging is essentially a selective prosecution claim, and we analyze it under that rubric. Selective prosecution doctrine, however, poses significant hurdles for Belmontes. The government retains broad discretion as to whom to prosecute. Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Because the decision to prosecute is based on such factors as the strength of the case, the government's enforcement priorities, and the case's relationship to those priorities, the Supreme Court has stated that such decisions are "particularly ill-suited to judicial review." Id. at 607, 105 S.Ct. 1524. Therefore, a presumption of regularity supports prosecutorial judgments, and "in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." United States v. Armstrong, 517 U.S. 456, 463, 464 (1996) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)). "So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

Yet, there is a line the prosecution may not cross. Although prosecutorial discretion is broad, it is not unlimited. United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Rather, "a prosecutor's discretion is `subject to constitutional constraints.'" Armstrong, 517 U.S. at 464, 116 S.Ct. 1480(quoting Batchelder, 442 U.S. at 125, 99 S.Ct. 2198). The decision to prosecute may not be based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights. Armstrong, 517 U.S. at 464, 116 S.Ct. 1480; Wayte, 470 U.S. at 608, 105 S.Ct. 1524. Likewise, the decision to charge the death penalty cannot rest on criteria that offend the Constitution. McCleskey v. Kemp, 481 U.S. 279, 293, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Adamson v. Ricketts, 865 F.2d 1011, 1022-23 (9th Cir.1988) (en banc), abrogated on other grounds, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

In order to prevail on a selective prosecution claim, a defendant must show that the prosecutorial policy both had a discriminatory effect and was motivated by a discriminatory purpose. Armstrong, 517 U.S. at 465, 116 S.Ct. 1480; see also McCleskey, 481 U.S. at 292, 107 S.Ct. 1756("[T]o prevail under the Equal Protection Clause, [a defendant] must prove that the decisionmakers in his case acted with discriminatory purpose."). To establish a discriminatory effect in a race discrimination case, a defendant must prove that similarly situated individuals of a different race, or whose victims were of a different race, were not prosecuted. Armstrong, 517 U.S. at 467, 116 S.Ct. 1480.11

We reject the government's contention that the Supreme Court rejected similar statistical evidence in McCleskey v. Kemp, and that Belmontes' statistics are therefore "insufficient as a matter of law." The factual showing made by McCleskey was materially different from the showing made in this case. In McCleskey, the Supreme Court reviewed the claim of a Georgia prisoner who alleged that the Georgia capital sentencing statute violated the Equal Protection Clause because it was administered in a racially discriminatory manner. 481 U.S. at 286, 107 S.Ct. 1756. In support of his claim, McCleskey offered a sophisticated statistical study that demonstrated that Georgia defendants whose victims were white were 4.3 times as likely to receive a death sentence as those whose victims were black. Id. The Court denied his claim, holding that McCleskey's statewide statistics did not meet his burden of proving that the imposition of the death penalty in his particular case was the product of purposeful discrimination. Id. at 293, 107 S.Ct. 1756. We have similarly refused to allow petitioners in California and Arizona to submit statistics that demonstrated racial disparities in the imposition of the death penalty statewide as evidence of discrimination in an individual case. See Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir.1992) (en banc) (Arizona); Harris v. Pulley, 885 F.2d 1354, 1374-75 (9th Cir.1989) (California). Unlike McCleskey, Carriger, and Harris, however, Belmontes offered statistics that provided information limited to the charging entity — the San Joaquin County District Attorney's Office — and its death penalty charging practices over time. Thus he provided what the statistics in McCleskey lacked: information specific to the decisionmaker in his case. We conclude that statistics relating to the charging entity, such as those presented by Belmontes, are materially more probative of discrimination in capital charging than those considered by the Supreme Court in McCleskey. See United States v. Bass, 536 U.S. 862, 122 S.Ct. 2389, 2389, 153 L.Ed.2d 769 (2002) (approving of "a showing regarding the record of the decisionmakers in respondent's case"). Thus, Belmontes' proffered statistics are not barred by McCleskey and may support a prima facie showing of unlawful charging discrimination.

We next confront the question whether Belmontes' proffered statistical evidence proves a "discriminatory effect" under Armstrong. The statistics show that defendants whose victims were white were charged with special circumstances 30% of the time, whereas similarly situa