The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody" on February 26, 2008, accompanied by a supporting Memorandum ("Pet. Mem."). Respondent filed an Answer on April 10, 2008. Petitioner filed a Reply on September 3, 2008.
An Information charged Petitioner with one count of battery by a prisoner on a non-confined person, in violation of California Penal Code section 4501.5. The Information also alleged that Petitioner had suffered a prior burglary conviction qualifying as a "strike" under California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d).*fn1 A jury found Petitioner guilty of the alleged battery (Reporter's Transcript ["R.T."] 514; Clerk's Transcript ["C.T."] 386-87, 436). Petitioner admitted suffering the prior first degree burglary conviction (R.T. 341-42; C.T. 381). The court imposed an upper term sentence of four years, doubled pursuant to the "one strike" provision of the Three Strikes Law,*fn2 for a total term of eight years (R.T. 578-59, 580; C.T. 475-76, 539).
The Court of Appeal affirmed the judgment on May 3, 2005 (Respondent's Lodgment 11; see also People v. Rosenblum, 2005 WL 1022771 (Cal. Ct. App., 4th Dist., Div. 2, May 2, 2005). The California Supreme Court denied Petitioner's petition for review on July 20, 2005, "without prejudice to any relief to which defendant might be entitled upon finality of People v. Black (2005) 35 Cal. 4th 1238 regarding the effect of Blakely v. Washington (2004) 542 U.S. ___, 124 S.Ct. 2531, and United States v. Booker (2005) 543 U.S. , 125 S.Ct. 738, on California law" (Respondent's Lodgment 13).
Petitioner filed a habeas corpus petition in the California Court of Appeal on October 23, 2007, which that court denied without opinion on October 31, 2007 (Respondent's Lodgments 14, 15). Petitioner filed a petition for review in the California Supreme Court on November 16, 2007, which that court denied without opinion on December 19, 2007 (Respondent's Lodgments 16, 17).
1. Petitioner allegedly received an upper term sentence in violation of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007) (Petition, Grounds One and Four*fn3 );
2. California Penal Code section 654 allegedly precluded the use of a prior prison term as an aggravating factor because Petitioner assertedly was still serving that prison term when he committed the instant offense (Petition, Ground Two); and
3. California Penal Code section 1170(b) allegedly precluded the use of a prior prison term both as an aggravating factor and as a strike under the Three Strikes Law (Petition, Ground Three).
A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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) (as amended); see also Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir.), cert. denied, 540 U.S. 968 (2003). In applying these standards, this Court looks to the last reasoned state court decision. See Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002). Where no such reasoned opinion exists, as where a state court rejected a claim in an unreasoned order, this Court must conduct an independent review to ...