The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner James Patrick Roberts, a state prisoner appearing pro se, has filed a petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Roberts is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California Substance Abuse Treatment Facility in Corcoran, California. Respondent has filed his answer. Roberts has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In September 2005 the District Attorney filed a Complaint charging Roberts with two counts of second degree robbery (Cal. Penal Code Sec. 211), one count of promoting the criminal conduct of a street gang (Cal. Penal Code Sec. 186.22(a)), one count of dissuading a witness (Cal. Penal Code Sec. 136.1(c)(1)) and one count of receiving stolen property (Cal. Penal Code Sec. 496(a)).*fn1
Pursuant to a plea agreement, Roberts waived his right to a preliminary hearing and pled no contest to one count of second degree robbery (Cal. Penal Code Sec. 211).*fn2 Through counsel, Roberts stipulated that "while [he] was engaged in this conduct, he was a member of a street gang and did this [robbery] for the benefit of the street gang."*fn3 Roberts also entered a special waiver, known in California as a "Harvey*fn4 Waiver," which would allow the trial court to consider his gang involvement for the purposes of sentencing.*fn5 The prosecution dismissed the remaining counts in exchange for Roberts' plea.*fn6
The trial court accepted the plea agreement and sentenced Roberts to the upper term*fn7 of five years. In considering facts in mitigation and aggravation, the court found that: 1) Roberts' prior convictions as an adult were of increasing seriousness; 2) Roberts served a prior prison term; 3) Roberts was on parole when the offense was committed; 4) Roberts' prior performance on grants of probation and parole were unsatisfactory.*fn8 In light of these findings, the court held that the appropriate disposition was the upper term of five years.*fn9 Pursuant to Roberts' "Harvey Waiver," the court considered Roberts' gang involvement and ordered him to register as a gang member (Cal. Penal Code Sec. 186.30) when he was released from prison.*fn10
Roberts appealed his conviction to the California Court of Appeals, Third District, which affirmed the judgment.*fn11 Roberts then filed a Petition for Review in the California Supreme Court. The sole issue raised in Roberts' petition was whether the imposition of an upper term sentence violated Roberts' Sixth Amendment Right to a Jury Trial and his Fourteenth Amendment right of Due Process.*fn12 The California Supreme Court denied review.*fn13 Roberts has not sought post-conviction relief through the state courts.
Roberts filed this timely petition for habeas corpus under 28 U.S.C. § 2254. In his petition, Roberts raises two grounds upon which he claims relief: 1) The trial court erred in imposing a gang registration requirement under Cal. Penal Code Section 186.30 because there was insufficient evidence to support it; 2) The trial court violated Roberts' Sixth Amendment right to a fair and impartial jury by sentencing him to the upper term based on facts that were neither admitted by Roberts nor determined to be true beyond a reasonable doubt by a jury.*fn14 Respondent has not raised any affirmative defenses.
Because Roberts 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 state court 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."*fn15 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."*fn16 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn17 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.'"*fn18 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.*fn19 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.*fn20 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.*fn21
In applying this standard, this Court reviews the last reasoned decision by the state court,*fn22 which in this case was that of the California Court of Appeal.*fn23 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.*fn24
When there is no reasoned state court decision denying an issue presented to the state court and raised in a federal habeas petition, this Court must assume that the state court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn25 The scope of this review is for clear error of the state court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams .. . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. ...