of the death penalty when the state has proved that mitigating factors do not outweigh aggravators); Smith, 140 F.3d at 1272 (summarily rejecting challenges to the “mandatory” quality of Arizona’s death penalty statute and its failure to apply the beyond-a-reasonable-doubt standard). In Smith, the Ninth Circuit likewise rejected the argument that Arizona’s death penalty statute is constitutionally infirm because “the prosecutor can decide whether to seek the death penalty.” 140 F.3d at 1272; see Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (pre-sentencing decisions by actors in the criminal justice system that may remove an accused from consideration for the death penalty are not unconstitutional); Silagy v. Peters, 905 F.2d 986, 993 (7th Cir.1990) (<HOLDING>). For the reasons set forth above, Petitioner
holding that the decision to seek the death penalty is made by a separate branch of the government and is therefore not a cognizable federal issue holding any error in refusing to appoint an additional counsel under  3005 is harmless when the government declines to seek the death penalty holding that leaning towards the death penalty is not the same as an automatic vote for the death penalty holding that the statutory requirement applies promptly after indictment not only after the attorney general has made a determination to seek the death penalty holding that the penalty is applicable