The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Peter Dale Graves, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Graves is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Mule Creek State Prison. Respondent has answered and Graves has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
After a jury trial, Graves was convicted in the California Superior Court, Sacramento County, of one count each of: committing a lewd act upon a child (Cal. Penal Code § 288(a)); (2) attempting to commit a lewd act upon a child (Cal. Penal Code §§ 664/288(a)); distributing harmful material to a minor (Cal. Penal Code § 288.2(a)); and (4) misdemeanor annoying a minor (Cal. Penal Code § 647.6). The Sacramento County Superior Court sentenced Graves to an aggregate indeterminate prison term of 70 years and 4 months to life. Graves timely appealed his conviction and sentence to the California Court of Appeal, Third Appellate District, which, after a somewhat tortuous history, ultimately affirmed the conviction and sentence in an unpublished reasoned decision.*fn1 The California Supreme Court summarily denied review without opinion or citation to authority on July 30, 2003.*fn2 The Supreme Court denied Graves's petition for certiorari on December 1, 2003.*fn3
On October 12, 2004, Graves filed his first petition for a writ of habeas corpus in the Sacramento County Superior Court, which was denied as untimely on November 15, 2004.*fn4 On March 9, 2005, Graves filed his second petition for habeas relief in the California Court of Appeal, Third Appellate District, which summarily denied his petition without opinion or citation to authority.*fn5 Graves then filed a petition for habeas relief in the California Supreme Court, which denied his petition citing In re Robbins (1998) 18 Cal. 4th 770, 780 [959 P.2d 311, 317-18].*fn6 Graves timely filed his petition for relief in this Court on April 21, 2006, and his amended petition, with leave of court, on December 28, 2006.*fn7
II. GROUNDS PRESENTED/DEFENSES
In his amended petition, Graves raises 13 grounds, some with several sub-grounds. These grounds, described in general terms, are:*fn8 (2) use of the 1996 version of CALJIC 2.50.01 was unconstitutional and, as modified by the court, was ambiguous and confusing; (3) the admission of evidence under California Evidence Code § 1108 violated due process; (4) he was erroneously charged under California Penal Code § 288.2 as a felony offense; (5) erroneous jury instructions on the elements of the crime; (6) police misconduct (illegal search and seizure); (7) ineffective assistance of trial counsel; (8) failure of the trial court to relieve appointed counsel for a conflict interest violated Graves's right to counsel under the Sixth and Fourteenth Amendments; (9) exclusion of Graves from critical stages of the trial; (10) improper denial of Marsden motions;*fn9 (11) improper sentencing in the use of an invalid prior conviction; (12) ineffective assistance of appellate counsel; (13) admission of prior bad acts under California Evidence Code § 1108 violated due process;*fn10 and (14) the California Supreme Court improperly denied review. Respondent contends that the claims made by Graves are procedurally barred in their entirety, except his third, thirteenth and fourteenth grounds. Respondent raises no other affirmative defense.*fn11
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."*fn12 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."*fn13 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.*fn14 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.'"*fn15 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.*fn16 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.*fn17 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.*fn18
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn19 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.*fn20
It is the usual practice of this Court to discuss the grounds raised in the order in which they were raised. In this case, however, the Court has determined that in the interests of clarity and efficiency, it will address the three grounds to which no affirmative defense has been raised and must, therefore, be addressed on the merits-the third, thirteenth, and fourteenth. This Court will then address the grounds to which the Respondent has asserted the affirmative defense of procedural bar. In addition, because they are substantially similar and involve the same section of the California Evidence Code, § 1108, discussion of the third and thirteenth grounds will be combined.
Grounds 3 and 13: California Evidence Code § 1108
Graves makes two arguments challenging the admission of his prior conviction for sex crimes under California Evidence Code § 1108:*fn21 (1) § 1108 is unconstitutional; and (2) the trial court did not properly weigh the probative value of the evidence against its potential for undue prejudice under California Evidence Code § 352. The California Court of Appeal rejected Graves's arguments, holding:
Defendant contends the trial court erred by admitting evidence of his prior sexual offenses against Michael C., Donald F., and James S. He argues Evidence Code section 1108, which authorizes admission of such evidence, is unconstitutional in that it violates his rights to due process and equal protection. (Further statutory references in this part are to the Evidence Code.) Similar arguments were rejected by the California Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903 at pages 910-922, 89 Cal.Rptr.2d 847, 986 P.2d 182, and by this court in People v. Fitch (1997) 55 Cal.App.4th 172 at pages 178-185, 63 Cal.Rptr.2d 753.
Under section 1108, "evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Italics added.) Our conclusion that section 1108 is constitutional makes it unnecessary to consider defendant's ...