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
IT IS SO ORDERED AND ADJUDGED. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
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 ...