Unpublished Disposition, 928 F.2d 408 (9th Cir. 1990)

MEMORANDUM^** 

On May 27, 1982, appellant James Haberlin was convicted of murdering Harold Burgess and attempting to murder Bradford Ambler. On September 25, 1989, Haberlin filed the present petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition on April 26, 1990, and Haberlin filed a timely appeal. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

We review the district court's denial of a habeas petition de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989). The petition was based on three alleged constitutional violations: first, the prosecutor's conduct at trial deprived him of a fair trial; second, his sentence was based upon false information depriving him of due process; third, the sentencing scheme he was sentenced under denied him equal protection of the law.

A. Prosecutorial Misconduct.

We review due process claims based upon alleged prosecutorial misconduct to determine if they so infected the trial with unfairness as to make the resulting conviction a denial of due process. Greer v. Miller, 483 U.S. 756, 765 (1987). We first consider whether the conduct complained of is improper. United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986). We then examine the improper conduct to determine "whether, considered in the context of the entire trial, that conduct appears likely to have affected the jury's discharge of its duty to judge the evidence fairly." United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990).

The trial judge has discretion to allow a jury to consider comments made in closing argument to which one party objects. United States v. Makhlonta, 790 F.2d 1400, 1403 (9th Cir. 1986). Alleged misconduct which was not objected to at trial is reviewed for plain error. United States v. Feldman, 853 F.2d 648, 652 (9th Cir. 1988), cert. denied, 489 U.S. 1030 (1989). When a jury has been instructed to disregard inadmissible evidence the jury is presumed to follow the instruction "unless there is an overwhelming probability that the jury will be unable to follow the court's instructions, and a strong likelihood that the effect of the evidence would be devastating to the defendant." Greer, 483 U.S. at 766 n. 8 (citations omitted).

Haberlin presents fifteen instances of prosecutorial misconduct which he argues denied him of a fair trial. In no fewer than six of the thirteen specific instances of misconduct of which Haberlin now complains, defense counsel made no objection at trial.¹  In two of the instances, the jury was admonished to disregard the prosecutor's comment.²  We have reviewed the record and considered carefully the instances of alleged misconduct in the context of the entire trial. Several instances of which Haberlin complains do not appear to be improper.³  In considering the likely affect on the jury of those instances of conduct which are arguably improper, we find that the conduct did not deprive Haberlin of his right to a fair trial. See e.g., United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986) (improper statements during closing argument was harmless error). Though the prosecutor's conduct appears at times to be overzealous and obnoxious, it does not amount to a deprivation of due process. See Thomas v. Cardwell, 626 F.2d 1375, 1387 (9th Cir.), cert. denied, 449 U.S. 1089 (1980).

B. False Information in Sentencing.

Haberlin argues that his due process rights were violated because the trial court judge relied on false information in his sentencing decision. We disagree. For us to find a due process violation, Haberlin "must show such information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence." United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986) (citing Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978) (en banc)).

The "information" Haberlin complains the trial court relied upon is the judge's statement that no mattress was found at the house. Haberlin has not shown that the information is false within the meaning of the Farrow test. "Challenged information is 'false or unreliable' if it lacks 'some minimal indicium of reliability beyond mere allegation.' " United States v. Ibarra, 737 F.2d 825, 827 (9th Cir. 1984) (quoting United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982)). Two police witnesses did not mention the mattress when asked if they noticed anything unusual in the house. The trial judge could reasonably believe that at least one of the officers would have noticed a mattress against a window and considered it unusual. The statement, "no mattress was ever found," is thus a permissible inference from the officers' testimony. Because Haberlin cannot show that the judge relied upon false information in sentencing him, he was not deprived of due process on this basis.

C. Sentencing and Equal Protection.

Haberlin's final ground for relief is that the California sentencing scheme under which he was sentenced violates the equal protection clause of the Fourteenth Amendment. In Makal v. Arizona, 544 F.2d 1030 (9th Cir. 1976), cert. denied, 430 U.S. 936 (1977)), we rejected a similar claim stating:

So long as the type of punishment is not based upon any proscribed federal grounds such as being cruel and unusual, racially or ethnically motivated, or enhanced by indigency, the penalties for violations of state statutes are matters of state concern.

Id. at 1035. Because no such federal ground is implicated by Haberlin, this claim is similarly a matter of state concern and not properly raised in a federal habeas petition.

For the above stated reasons, the judgment of the district court is affirmed.

AFFIRMED.