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August 13, 2004.

ANTHONY LAMARQUE, et al., Respondents.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


The petition of David Rajesh Harbans for writ of habeas corpus pursuant to 28 U.S.C. § 2254 has been denied. Judgment is entered accordingly.


  David Rajesh Harbans, a prisoner of the State of California incarcerated at Salinas Valley State Prison at Soledad, California, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented by court-appointed counsel, who formerly represented Harbans pro bono. The Court issued an Order to Show Cause and partial dismissal on July 22, 2002. Respondent filed an answer in opposition to the petition, and Harbans filed a traverse. Having considered all papers submitted regarding this action, the Court hereby DENIES the petition for writ of habeas corpus.


  In July, 1995, Harbans was convicted of four counts of robbery in the Superior Court of California, in and for the County of Contra Costa. In January, 1996, the court sentenced Harbans to a term of 107 years to life. He appealed and filed a concurrent petition for writ of habeas corpus. The California Court of Appeal affirmed the conviction and denied the petition for writ in October, 1997. Harbans filed a petition for review in the California Supreme Court, which was denied in February, 1998. Harbans then sought review in the California Supreme Court on an additional ineffective assistance of counsel claim in a second habeas corpus petition filed in March, 1998. In February, 1999, the California Supreme Court issued an order to show cause, returnable to the Contra Costa County Superior Court. The Superior Court denied the petition in September, 2000, after conducting an evidentiary hearing. Harbans sought review of the superior court's denial in a new petition for writ of habeas corpus in the California Supreme Court; that petition was denied in February, 2002. He then filed the present petition in June, 2002, alleging that seven separate violations of his constitutional rights occurred during his trial. For the following reasons, Harbans' petition is DENIED.


  This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000).


  There are seven claims in the petition. First, Harbans alleges that he was deprived of effective assistance of counsel when his trial attorney failed to communicate to him a plea bargain offer made by the prosecution that would have resulted in a 21 year determinate sentence. Second, Harbans states a Batson claim based upon the prosecutor's use of peremptory challenges during voir dire. Batson v. Kentucky, 476 U.S. 79 (1986). Third, Harbans asserts that certain of the prosecutor's arguments to the jury deprived him of his right to a fair trial. Fourth, fifth, and sixth, Harbans sets forth three claims based on allegedly erroneous jury instructions. Finally, Harbans contends that his sentence of 107 years to life constitutes cruel and unusual punishment under the Eighth Amendment. 1. Ineffective assistance of counsel

  At his trial, Harbans was represented by attorney Maureen Kallins. Harbans alleges that the prosecutor communicated a plea-bargain offer of 21 years for Harbans to Ms. Kallins at Harbans' pre-preliminary hearing readiness conference on December 5, 1994. Pet. at 4. Judge Flier allegedly approved the offer. Id. Harbans contends that Ms. Kallins never told him of this offer. Id. Harbans concedes that he learned about this offer two days later at his readiness conference on December 7, 1994. Id. at 8. At this hearing, attorney Charles Gretsch represented Harbans because Ms. Kallins was unable to attend. Id.

  Harbans' state court habeas petition alleged ineffective assistance of counsel on this basis. Ex. G. The Contra Costa County Superior Court held an evidentiary hearing regarding this claim. Exs. O1-O5. At the evidentiary hearing, Harbans testified that when he learned about the plea offer at his readiness hearing, he told Mr. Gretsch that he wanted to accept the offer, and Mr. Gretsch responded that Ms. Kallins had told him to refuse the plea bargain. Ex. 01, Harbans, ¶ 12-14. In addition, Mr. Grestch allegedly misinformed Harbans that the offer was for 11 years, rather than 21. Id.

  Harbans also testified that he attempted to tell Judge Flier that he wanted to accept the plea offer, but was told to speak only through his attorney. Id. The reporter's transcript of the hearing apparently confirmed that Harbans did indeed attempt to interrupt proceedings, but did not record any details of what Harbans said. Id. 14-18.

  Harbans testified that he talked to Ms. Kallins a couple of days later to ask her about the offer, when she told him the offer was for 21 years. Ex. O1 at 16-17. Harbans testified that when he asked Ms. Kallins why she hadn't relayed the offer to him and then told her that he wanted to accept it, she responded that it would be ridiculous to accept the offer, that she could beat this case and was the best attorney in the state. Id. at 18. In contrast, Ms. Kallins testified that Harbans was present when the prosecutor offered the plea bargain and that she also had telephone conversations with Harbans and ...

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