The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner, Thomas Jennins Thomas, a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Thomas is presently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Pleasant Valley State Prison. Respondent has answered the petition, and Thomas has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
After a jury trial, Thomas was convicted in the San Joaquin County Superior Court of one count each of voluntary manslaughter (Cal. Penal Code § 192(a)),*fn2 discharge of a firearm in a grossly negligent manner (Cal. Penal Code § 246.3), and possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)). The trial court concluded that Thomas' conviction of voluntary manslaughter was contrary to law and reduced the voluntary manslaughter conviction to an involuntary manslaughter conviction. The trial court then sentenced Thomas to consecutive terms in the aggregate of 85 years to life. Thomas timely appealed his conviction and sentence to the California Court of Appeal, Third District, which affirmed his conviction and sentence in an unpublished reasoned decision.*fn3 The California Supreme Court summarily denied review without opinion or citation to authority on September 21, 2005. While his appeal was pending, Thomas filed a petition for habeas corpus relief in the San Joaquin Superior Court, which denied his petition. Subsequent petitions for habeas relief in the California Court of Appeal, Third District, and California Supreme Court were denied on May 12, 2005, and April 11, 2007, respectively. Thomas timely filed his petition for relief in this court on June 3, 2007.
II. ISSUES RAISED/DEFENSES
Thomas raises five grounds in his petition: (1) insufficiency of the evidence to support a conviction of involuntary manslaughter; (2) trial court erred in instructing the jury that an adverse inference could be drawn from Thomas's testimony (CALJIC 2.62);*fn4 (3) trial court erred in finding the involuntary manslaughter charge did not arise on the same occasion and from the same operative circumstances as the other offenses of which he was convicted; (4) the imposition of consecutive sentences violated Blakely/Apprendi;*fn5 and (5) one of the two priors used to trigger the Three-Strikes law was invalid and should not have been used. Respondent has not asserted any affirmative defense to the remaining grounds.*fn6
Because the petition was filed 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."*fn7 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."*fn8 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.*fn9 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.'"*fn10 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.*fn11 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.*fn12 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 outcome.*fn13
In applying this standard, this court reviews the last reasoned decision by the state court.*fn14 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.*fn15 This presumption applies to state trial courts and appellate courts alike.*fn16
Ground 1: Insufficiency of the Evidence
Thomas argues that the involuntary manslaughter conviction must be vacated because the evidence was insufficient to support a finding that the battery that resulted in the death was dangerous under the circumstances. In rejecting Thomas's argument, the California Court of Appeal held:
The jury convicted defendant of voluntary manslaughter and found the firearm use enhancements not to be true. Exercising its independent judgment, the trial court reduced the conviction to involuntary manslaughter because the jury had found that defendant did not use a weapon to strike Hillary and thus, a voluntary manslaughter conviction was contrary to law.FN1 Defendant contends insufficient evidence supports an involuntary manslaughter conviction because the unlawful act committed, that is, battery, was not dangerous under the circumstances, claiming he is much shorter than Hillary, they were both under the influence at the time, and Hillary's death was a "fluke."
FN1 Neither party raises an issue with respect to the trial court's act of reducing the conviction. (See § 1181, subd. 6; People v. Robarge (1953) 41 Cal.2d 628, 633; People v. Johnston (2003) 113 Cal.App.4th 1299, 1307-1308.) "In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that ...