The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Ronald Schoen, a state prisoner proceeding pro se, initiated a petition for habeas corpus relief under 28 U.S.C. § 2254. Schoen is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California Substance Abuse Treatment Facility and State Prison in Corcoran, California. Respondent has answered the petition. Petitioner has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
By an amended information filed April 1, 2003, Schoen was charged with ten counts of aggravated sexual abuse of a minor (Cal. Penal Code § 269(a)(1)), ten counts of forcible lewd act with a minor (Cal. Penal Code § 288(b)(1)), and one count of forcible oral copulation (Cal. Penal Code § 288(c)(2)). All of the counts involved the same victim. The information also alleged a prior conviction of sexual penetration with an age difference (Cal. Penal Code § 289(i), within the meaning of §§ 667.51(a) and 667.6(a)).
Schoen was convicted after entering a negotiated plea of no contest to one count of aggravated sexual assault of a minor (Cal. Penal Code § 269(a)(1)). On July 31, 2003, Schoen was sentenced to an indeterminate term of 15 years to life with the possibility of parole.
Schoen timely appealed the judgment of conviction to the California Court of Appeal, Third Appellate District, requesting the court to conduct an independent review of the record.*fn2
As a result of its review, the Third District Court of Appeal found that the trial court erroneously calculated conduct credit under Cal. Penal Code § 4019, modified the judgment to calculate such credit under Cal. Penal Code § 2933.1, and affirmed the judgment as modified.*fn3 On February 4, 2004, Schoen filed a Petition for Writ of Habeas Corpus in the Sacramento County Superior Court, which was denied on March 19, 2004.*fn4 On April 15, 2004, Schoen filed a Petition for Rehearing in the California Court of Appeal, which was summarily denied.*fn5 On August 10, 2004, Schoen filed a Petition for Writ of Habeas Corpus with the California Court of Appeal, Third Appellate District, which was denied on August 12, 2004, without explanation or citation.*fn6
On September 27, 2004, Schoen filed a Petition for Writ of Habeas Corpus in the Supreme Court of the State of California.*fn7 That petition was similarly denied without explanation or citation on August 10, 2005.*fn8 Schoen timely filed his petition for relief in this Court on September 29, 2005.
II. GROUNDS PRESENTED/DEFENSES
In his petition Schoen raises three grounds: (1) the state's violation of the terms of his plea bargain agreement infringed his right to due process; (2) ineffective assistance of trial counsel, and; (3) the application of Evidence Code § 1108 violated his right to Due Process.
Respondent asserts no affirmative defense; however, Respondent expressly states that to the extent any claims are unexhausted, it does not waive the exhaustion requirement.*fn9
Because Schoen 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 decisions of the California courts were "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 courts rendered their decisions or were "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings."*fn10 As the Supreme Court has explained, "clearly established Federal law" "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn11 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.'"*fn12
When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn13
The Supreme Court has made it clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn14 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.*fn15
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn16 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts ...