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United States District Court, N.D. California

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 separately with his father regarding his plea offer. Id. at 145-50. However, relevant court records and telephone bills did not support her assertions. Id. at 293-99.

  A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). Ineffective assistance occurs when a counsel's conduct so undermines the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. at 686.

  In order to demonstrate that his counsel was constitutionally ineffective, a petitioner must satisfy a two-pronged test. Id. at 687. First, he must show that his counsel's performance was so deficient that it fell below an objective standard of reasonableness. Hensley v. Crist, 67 F.3d 181, 185 (9th Cir. 1995), citing Strickland, 466 U.S. at 687. The Superior Court found that Ms. Kallins had failed to communicate the offer to Harbans at or before his readiness conference on December 7, 1994, thus meeting the first prong. Ex. O5 at 4. Second, a petitioner must show that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. To show prejudice under Strickland, one must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. 466 U.S. at 698. The Superior Court found that Harbans had failed to show prejudice. Harbans now appeals this part of the decision.

  Under the "unreasonable application" clause of 28 U.S.C. § 2254, this Court may not grant Harbans' writ simply if it concludes in its independent judgment that the Superior Court was incorrect in its decision. The highly deferential standard under which this Court must review the Superior Court's decision demands that it be given the benefit of the doubt. Thus, it is Harbans' burden to show that the state court applied federal law to the facts of his case in an objectively unreasonable manner. This is a high burden to meet, and Harbans has not succeeded in meeting it.

  First, Harbans alleges that the Superior Court held Harbans to the wrong standard of proof in deciding whether he had been prejudiced by Ms. Kallins' failure to inform him of the plea offer before his readiness conference. To show prejudice, petitioner must demonstrate that there is a "reasonable probability" that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. "Reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id. Harbans asserts that the Superior Court mistakenly required him to demonstrate prejudice by a preponderance of the evidence, a higher standard than reasonable probability. To support this allegation, Harbans points to certain language in the Superior Court's decision to deny Harbans' claim. In this decision, Judge Peter L. Spinetta stated, "[T]he defense has not persuaded me by a preponderance of the evidence that . . . Harbans' state of mind that he would not be convicted . . . in a three strike case . . . was the product of any ineffective assistance of counsel by Ms. Kallins." Ex. O5 at 8:19-24. Later, the judge also stated, "[I]t has not been established to my satisfaction, that is to say, by a preponderance of the evidence, that but for the ineffective assistance of counsel, that we would have had a different result here." Id. at 12:16-20.

  The entire decision as a whole, however, as well as the transcripts of the hearings, make it apparent that Judge Spinetta in fact applied the correct standard of reasonable probability to his determination of prejudice. In his decision, Judge Spinetta began by laying out the Strickland test. He emphasized that to satisfy the requirement of prejudice, Harbans had to show that "but for [the] ineffective assistance of counsel, if any, that it's reasonably probable that there would have been a different outcome to this matter." Id. at 3:27-28 (emphasis added). After going though all of the evidence, he concluded, "And when all is said and done, I find that the defendant has failed to carry the burden of proving by a preponderance of the evidence that but for the malpractice in this matter, but for the ineffective assistance of counsel, that it's reasonably likely that he — that a different result would have been obtained." Id. at 5:20-26 (emphasis added).

  While the statements Harbans points to are arguably ambiguous and perhaps even misleading when taken in isolation, the rest of Judge Spintta's decision clarifies his meaning and demonstrates that he applied the correct legal standard. In his decision, Judge Spinetta merely meant that Harbans needed to show "reasonable probability" of a different outcome by a preponderance of the evidence. This is the correct legal standard. See, e.g., Alvernaz v. Ratelle, 831 F. Supp. 790, (S.D. Cal. 1993) (granting habeas when the petitioner had "proved by a preponderance of evidence that there [was] a reasonable probability that" the outcome would have been different).

  In light of his entire opinion, it is improper to conclude that Judge Spinetta's "occasional shorthand reference" to this standard amounted to the application of a different standard, even if it showed an "imprecise" use of language. Woodford v. Vischiotti, 537 U.S. 19, 23-24 (2002) (finding that a court's occasional use of the term "probable" without the modifier "reasonably" in setting forth the Strickland standard did not require the petitioner to show prejudice by a preponderance of the evidence, but rather was "shorthand reference" to the "reasonably probable" standard clarified elsewhere in the opinion).

  In addition, Judge Spinetta's own explanation of his reasoning shows that his decision was indeed reasonable. As Judge Spinetta explained, Harbans needed to prove by a preponderance of the evidence that it was reasonably probable that he would have accepted the plea offer but for Ms. Kallins's deficient performance. Ex. O5 at 5. While Harbans had possibly tried to tell Judge Flier that he wished to accept the plea offer at his readiness hearing on December 7, he was operating at that time under the mistaken impression that the offer was for 11 years rather than 21. Judge Spinetta emphasized that Harbans had made no attempt after this one interruption to accept the offer after he learned that it was for 21 years. Id. at 10. The record showed no attempts by the defense to resurrect or discuss the offer and Harbans appeared satisfied with Ms. Kallins at the time. Id. Thus Judge Spinetta carefully considered the evidence before concluding that Harbans would have rejected the plea offer anyway, even had Ms. Kallins' performance not been deficient, and if she had timely informed Harbans of the plea offer.

  Harbans also cites to Nunes v. Mueller, 350 F.3d 1045 (9th Cir. 2003). In Nunes, the Ninth Circuit overturned a state court's denial of a claim of ineffective assistance without first conducting an evidentiary hearing to allow the petitioner to substantiate his claim. Id. at 1054 ("With the state court having purported to evaluate Nunes' claim for sufficiency alone, it should not have required Nunes to prove his claim without affording him an evidentiary hearing"). The Ninth Circuit refused to defer to the state court's factual findings when the state court had refused the petitioner an evidentiary hearing. Id. at 1055. In contrast, Judge Spinetta took Harbans' claim seriously, conducting a full evidentiary hearing in order to resolve what he regarded as a "difficult matter." Proceedings of Aug. 28, 2000, at 27. His factual finding that Harbans' evidence failed to show a reasonable probability of a different outcome was a diligently-made conclusion that is entitled to deference.

  2. The prosecutor's allegedly discriminatory peremptory challenges during voir dire.

  When selecting the jury for Harbans' trial, the prosecutor challenged the first two Hispanic persons seated in the jury box. In response, Harbans raised a Batson challenge. Batson v. Kentucky, 476 U.S. 79 (1986). Soon after, the prosecutor challenged a third Hispanic person, and Harbans renewed his motion. The court asked the prosecutor to justify her challenges, noting that "in fact, three Hispanic people have been challenged in short order here," and thereafter the court denied both motions. Reporter's Transcript on Appeal, 19-20. Harbans challenges these decisions, arguing that the prosecutor failed to provide adequate evidence that the challenges were race-neutral.

  A peremptory challenge made for race-based motivations violates the federal Equal Protection Clause. Batson, 476 U.S. at 85. After a defendant establishes a prima facie case of discriminatory challenges, the prosecutor must provide a "clear and reasonably specific" race-neutral explanation of her "legitimate reasons" for the challenges. Purkett v. Elem, 514 U.S. 765, 839-40 (1995). A court must then decide whether this explanation is acceptable or not. Batson, 476 U.S. at 96-98. This decision turns upon the credibility of the attorneys, and thus lies "peculiarly within the trial court's province." Hernandez v. New York, 422 U.S. 352, 365 (1991). A trial court's finding that the challenges were non-discriminatory is only reviewable for clear error. Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993).

  Harbans first bore the burden of establishing a prima facie case that the prosecutor challenged the jurors with discriminatory intent. According to Harbans, the Superior Court decided that Harbans failed to do so. This, however, is a mistaken argument. By asking the prosecutor to explain her reasons for the challenges, the court made an implied finding of a prima facie case. People v. Fuentes, 54 Cal.3d 707, 716 (1991). Harbans also asserts that at the time of his trial, the standard of proof for establishing a prima facie case under controlling California caselaw was a "strong likelihood" of discriminatory intent. Harbans argues that in light of Batson, which only requires a petitioner to show a "reasonable inference" that the challenges were discriminatory, the "strong likelihood" standard was unconstitutionally high. Although the record does not demonstrate clearly what standard the trial court applied, it impliedly found in favor of Harbans by asking the prosecutor to explain the reason for her challenges, as discussed above. Any error was therefore non-prejudicial.

  In Harbans' case, the prosecutor offered race-neutral explanations for her challenges which the trial court found credible. Because it cannot be said that the trial court's decision was objectively unreasonable, this Court DENIES Harbans' request for a new trial based on the superior court's denial of his Batson motions. 3. Harbans' right to a fair trial.

  Harbans argues that he was deprived of his right to a fair trial under the Fifth, Sixth, and Fourteenth Amendments because the prosecutor was inappropriately allowed to argue 1) that all charged offenses showed a distinctive modus operandi, and 2) that since eyewitnesses to five separate robberies identified Harbans as the robber, they corroborated each other. RT 882-84, 900-06. Harbans argues that although the charged robberies were in fact similar to each other, they were also similar to thousands of other robberies "committed in cities across the United States every day." Pet. at 39. Harbans also argues that the fact of multiple charges joined in a single prosecution does not constitute lawful proof of the defendant's guilt of any one particular charge. Finally, Harbans contends that the prosecutor improperly encouraged the jury to lump separate offenses together by reasoning that it was mathematically unlikely that Harbans had been mistakenly identified by five different eyewitnesses to five separate crimes. Such an argument, says Harbans, improperly lightened the prosecutor's burden of proof.

  A prosecutor's alleged misconduct rises to the level of a constitutional violation only if it was so fundamental that it affected the fairness of the trial as a whole. A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." Smith v. Phillips, 455 U.S. 209, 219 (1982). Claims of prosecutorial misconduct are reviewed "`on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.) (citation omitted).

  In response to Harbans' objections, the trial court expressly admonished the jury to "always remember" that "[e]ach count is separate and is succinct," and that if it found that either attorney was straying beyond facts, the attorney had to be disregarded to that extent. RT 893. These admonitions cured any prejudicial effect of the prosecutor's reasoning. Under all of the circumstances, therefore, it cannot be said that Harbans was denied due process.

  Harbans argues that the court's admonition did not properly address the issue of modus operandi, which formed the basis of his objection. This is a technical distinction, however. As an admonition that was made in response to his objection, it did indeed instruct the jurors to disregard the prosecutor's line of argument if they felt it went beyond the facts, and to always remember that each of the counts was separate from the others. In the face of these instructions, Harbans has not shown that any prejudice resulted to him. The jury, in fact, returned a verdict finding Harbans guilty of some counts but not of others. It is clear, therefore, that the prosecutor's arguments did not cause the jury to lump all the counts together. When taken in its entirety, Harbans' trial cannot be said to have been fundamentally unfair.

  4. The allegedly erroneous jury instructions.

  The superior court instructed the jury that it could infer Harbans' guilt from his attempts to evade arrest when, weeks after the charged robberies, the police came to his home to arrest him on charges unrelated to the trial. The jury was also was also allowed to consider the fact that at two of the robberies with which Harbans was charged, eyewitnesses saw a man resembling Harbans' description running from the robbed stores toward a car. Harbans asserts that these instructions to the jury were erroneous. While his attempts to evade arrest showed some kind of guilty mind, argues Harbans, there was allegedly nothing to show that this mental state arose from the charges for which he was being tried. In addition, Harbans asserts, the identity of the fleeing robber was at issue.

  The California jury instruction on flight specifies that the "flight of a person immediately after the commission of a crime, or after he is accused of the crime, is not sufficient in itself, to establish his guilt, but it is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence." CALJIC No. 21.52. This instruction thus requires a jury, in cases where identity is an issue, to first determine whether the fleeing perpetrator was in fact the defendant, before deciding how much weight to accord to flight as evidence of guilt. People v. Mason, 52 Cal.3d 909, 943 (1991). The state court also instructed the jury per CALJIC No. 17.31 to disregard any instructions applicable to facts the jury had found did not exist. Because these instructions made very clear that it was up to the jury to first decide the identity of the perpetrator and then the significance of Harbans' flight upon arrest, the instructions were not inconsistent with Supreme Court precedent. 5. The jury instructions allowing the jury to infer guilt from Harbans' changing his appearance before lineup

  As a suspect, Harbans was lined up before witnesses of the charged robberies for identification. Harbans grew a moustache after arrest and before his live lineups. He had never grown a moustache before. The prosecutor argued that Harbans grew his moustache in an effort to make identification more difficult. The trial court instructed the jury under CALJIC 2.06 that his change in appearance could be considered as a circumstance tending to show guilt, if the jury found that the defendant had "attempted to suppress evidence against himself" by his change in physical appearance. RT 864. The court further instructed that "such conduct is not sufficient in itself to prove guilt, and its weight and significance, if any, are matters for your consideration." Id.

  To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). A court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982). When considered in the context of the overall charge to the jury, the court's instruction was conditional and clearly left the jury free to decide whether Harbans' growth of a moustache was an indication of guilt or not. The instruction, therefore, could not be said to amount to a violation of due process.

  6. The jury instruction on reasonable doubt

  As per the new version of CALJIC No. 2.90, the trial court explained "reasonable doubt" to the jury as any state of mind that was less than an "abiding conviction of the truth of the charge."*fn1 RT 872. The previous version of CALJIC 2.90 contained certain phrases such as "to a moral certainty" and "depending on moral evidence," that were deleted from the new version. The trial court also gave another instruction on reasonable doubt, which stated that a reasonable doubt was not any possible doubt, but was "a doubt based upon reason and common sense" or the "kind of doubt that would make a reasonable person hesitate to act." Proof beyond a reasonable doubt was "of such a convincing character that a reasonable person would not hesitate to rely and act upon it, in the most important of his or her own affairs."

  Harbans contends that the new version of CALJIC 2.90 is constitutionally defective because it equates reasonable doubt with an "abiding conviction" of guilt without explaining the standard of certainty that the jurors must entertain. An unbroken line of cases, however, upholds the revised instructions. See, e.g., Lisenbee v. Henry, 166 F.3d 997, 999-1000 (9th Cir. 2000). In addition, the supplemental instruction comes from the standard federal pattern instruction, which courts have also approved. See, e.g., Victor v. Nebraska, 511 U.S. 1, 16-17 (1994). Harbans offers no persuasive arguments to the contrary. It cannot be said, therefore, that these instructions violated due process.

  7. Cruel and unusual punishment under the Eighth Amendment.

  After trial, Harbans received a sentence of 107 years to life. This amounted to a life sentence without possibility of parole. The length of his sentence was enhanced because of the three strikes law. He asserts this lengthened sentence constitutes unconstitutionally cruel and unusual punishment. Since Harbans filed this petition, however, California's three strikes law has been upheld as constitutional. Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166 (2003); Ewing v. California, 538 U.S. 11; 123 S. Ct. 1179 (2003). Harbans' sentence, therefore, must be upheld.


  The petition for writ of habeas corpus is DENIED. The Clerk shall close the file. [Docket # 23].


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