The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Aaron Paul Vanover, a state prisoner appearing pro se, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Vanover is currently in the custody of the California Department of Corrections and Rehabilitation incarcerated at the Salinas Valley State Prison, Coalinga, California. Respondent has answered the petition, and Vanover has filed his traverse.
I. BACKGROUND/PRIOR PROCEEDINGS
In March 2006, Vanover was convicted upon a plea of guilty in the Sacramento County Superior Court of one count of evading law enforcement causing serious bodily injury (Cal. Vehicle Code § 2800.3), one count of vehicle theft with priors (Cal. Vehicle Code §§ 10851/666.5(a)), and three counts of receiving stolen property (Cal. Penal Code § 496(a)). Vanover also pled to two prior strikes. It was agreed that the court would dismiss one of his two strikes and that the maximum sentence imposed would be 17 years, 8 months. Petitioner agreed to an upper term sentence of five years on Count Three, to one-third the mid-term consecutive on Counts One, Six and Seven and to one-year enhancements for three prior prison terms. All of the terms were doubled under the Three Strikes Law.
Vanover did not appeal his conviction. Vanover filed a petition for a writ of habeas corpus in the Sacramento County Superior Court on March 5, 2007, which denied the petition in a reasoned decision April 26, 2007. Vanover then filed a petition for habeas relief in the California Court of Appeal, which summarily denied the petition without opinion or citation to authority and the California Supreme Court summarily denied review without opinion or citation to authority on July 11, 2007. Vanover filed a petition for certiorari in the Supreme Court on September 11, 2007, which was denied January 7, 2008. Vanover timely filed his petition in this Court on March 24, 2008.
II. ISSUES PRESENTED/DEFENSES
In his petition Vanover raises two grounds: (1) he was sentenced to the upper term based upon factors not found to be true by the jury or admitted; and (2) he was improperly sentenced to consecutive terms based upon factors not found to be true by the jury or admitted. Respondent has not asserted any affirmative defenses.*fn1
Because Vanover 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."*fn2 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."*fn3
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.'"*fn4 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 or erroneous."*fn5 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.*fn6 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 effect or influence in determining the jury's verdict.*fn7
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn8
Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn9
Ground 1: Cunningham Violation at the ...