United States District Court, N.D. California
August 13, 2004.
DAVID RAJESH HARBANS, Petitioner,
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
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 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
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
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.)
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
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
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].
IT IS SO ORDERED.