The opinion of the court was delivered by: Timothy M. Burgess United States District Judge
Petitioner David A. Rodriguez, a state prisoner proceeding pro se, has filed a petition for relief under 28 U.S.C. § 2254. Rodriguez is currently in the Custody of the California Department of Corrections and Rehabilitation (CDCR) incarcerated in the Salinas Valley State Prison, Solano. Respondent has answered the petition. Rodriguez has not filed a traverse.
I. BACKGROUND/PRIOR PROCEEDINGS
Rodriguez was convicted by a San Joaquin County Superior Court jury in November 2003 of attempted premeditated murder (Cal. Penal Code, §§ 664 and 187(a) -- count one); mayhem (Cal. Penal Code § 203 -- count two); and being a felon in possession of a firearm (Cal. Pen. Code § 12021(a) -- count three). The jury found true enhancing allegations that Petitioner used and discharged a firearm, and caused great bodily injury (Cal. Penal Code §§ 12022.53(d), 12022.5(a), 12022.7(a)). After a separate court trial, the court found that Petitioner suffered two prior convictions for serious or violent felonies (Cal. Penal Code §§ 667(d) and 1170.12 (b)) and served a prior prison term. Rodriguez was sentenced to an aggregate term of 95 years-to-life. The court imposed a term of 45 years-to-life for count one, which consisted of tripling the fifteen-to-life term for the attempted murder as a result of the prior strikes. Rodriguez received an additional 25 years-to-life for personally using a gun to inflict great bodily injury. The trial court stayed the punishment for count two (Cal. Penal Code § 654). Further, the trial court imposed an additional term of 25 years-to-life for count three.
Rodriguez timely appealed his conviction to the California Court of Appeal, Third Appellate District, which affirmed his conviction in an unpublished written decision and the California Supreme Court summarily denied review without opinion or citation to authority on March 22, 2006. Rodriguez filed an application for a writ of habeas corpus in the San Joaquin Superior Court on May 22, 2007, which was denied in a reasoned written decision. Rodriguez filed successive petitions for habeas relief in the California Court of Appeals, Third Appellate District, and the California Supreme Court, which petitions were summarily denied without opinion or citation to authority on July 26, 2007, and February 13, 2008, respectively.
Rodriguez timely filed his petition for relief in the United States District Court, Northern District of California, on March 21, 2008. The proceeding was transferred to this Court on March 28, 2008.
II. ISSUES RAISED/DEFENSES
In his petition Rodriguez raises four grounds: (1) he was sentenced in excess of the statutory maximum for court three and his sentence on court one was enhanced in violation of the Sixth Amendment; (2) prosecutorial misconduct (misstatements in closing argument); (3) prosecutorial misconduct (presenting falsified evidence); and (4) ineffective assistance of trial counsel.
Respondent contends that Rodriguez's prosecutorial claims (second and third grounds) are procedurally defaulted. Respondent raises no other affirmative defenses.*fn1
Because Rodriguez 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 ...