The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Kao Saetern, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. At the time Saetern filed his petition he was in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California Medical Facility, Vacaville, California. Saetern is no longer in custody.
I. BACKGROUND/PRIOR PROCEEDINGS/JURISDICTION
On November 6, 2002, Saetern was convicted in the California Superior Court, Sacramento County of Assault with a Deadly Weapon (Cal. Pen. Code § 245(a)(1)), and was sentenced to four years' imprisonment, with a three-year enhancement for personal infliction of great bodily injury (Cal. Pen. Code § 12022.7(a)), for an aggregate term of seven years. The facts of the crime and the proceedings in the trial court are well known to the parties and are not repeated here.
Saetern appealed his conviction to the California Court of Appeal, which affirmed his conviction in an unpublished reasoned decision on October 14, 2004. The California Supreme Court denied review on January 26, 2005, and Saetern's conviction became final 90 days later, April 26, 2005, when his time to seek certiorari before the United States Supreme Court lapsed.
Saetern timely filed his petition for relief in this Court on April 18, 2006 (date stamped April 21, 2006).
It appears from the record that Saetern has been released from custody. It also appears from the record that Saetern received credit for 344 days actual time served prior to the imposition of sentence. Consequently, Saetern has completed his sentence and is no longer in custody. This Court retains jurisdiction as Saetern was in custody at the time he filed his petition, and the matter is not rendered moot because of the irrefutable presumption that collateral harm results from any criminal conviction.*fn2
II. GROUNDS RAISED/DEFENSES
In his petition Saetern raised four grounds: (1) denial of a right to a fair trial by failure to bifurcate the criminal street gang enhancement charge from the substantive charges; (2) denial of his right to confrontation of witness against him by allowing the introduction of preliminary hearing testimony of the victim who invoked the Fifth Amendment at trial violated Crawford;*fn3 (3) ineffective assistance of counsel by failure to move to have an attorney appointed for the victim at the preliminary hearing; and (4) the sentence at the upper term was based upon facts not found by the jury in violation of Apprendi--Blakely.*fn4
Respondent contends Saetern's fourth ground is procedurally barred. Respondent concedes that Saetern has exhausted his state court remedies and that there are no procedural bars to any of the first three grounds.
Because Petitioner filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn5 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn6
Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable," "not just incorrect."*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn9
Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious ...