The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Dwayne Allen Hubbard, a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Hubbard is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Sierra Conservation Center. Respondent has answered the petition. Hubbard has not replied.
I. PRIOR PROCEEDINGS/BACKGROUND
Following a jury trial, Hubbard was convicted in the Sacramento County Superior Court of one count of assault with intent to commit sexual penetration by a foreign or unknown object (Cal. Penal Code, §§ 220, 289(a)(1)), and one count of attempted kidnapping (Cal. Penal Code §§ 664/207(a).) In a bifurcated trial, the trial court found true an allegation that defendant had a prior conviction within the meaning of Cal. Penal Code §§ 1170.12 and 667(a) for a lewd act upon a child. The trial court sentenced Hubbard to a prison term of 13 years. Hubbard timely appealed to the California Court of Appeal, which affirmed his conviction and sentence in an unpublished, reasoned decision.*fn2 The California Supreme Court summarily denied review without opinion or citation to authority on August 13, 2008. Hubbard timely filed his petition for relief in this court on July 6, 2009.
The facts underlying Hubbard's conviction, as recited by the California Court of Appeal, are:
After playing in a tennis match at Luther Burbank High School, the victim, 16 year-old L.R., walked to the light rail station to take the light rail train home. The victim was standing up in the train when [Hubbard] approached her and asked her name. She did not respond, and moved to sit down. She got off the train at the Meadowview station and began walking home. Several other people, including [Hubbard], also got off the train at Meadowview.
[Hubbard] approached the victim and asked her to read a text message on his cell phone. The victim told [Hubbard] she could not read, and walked away. At some point, the victim became aware [Hubbard] was following her. [Hubbard] came up behind her, pulled her hair, and hit her in the eye. She tried to run away, but he pulled her toward some bushes. She resisted and pushed him away, then ran into the street.
When the victim tried to run away, [Hubbard] told her, "don't run from me, you're going to be my girl." He told her, "you're going to be mine." The victim was scared. She thought he was going to rape her, or do "anything he wanted." [Hubbard] ran after her, grabbed the front of her shirt, and ripped it open from the collar down to the belly button. The victim tried to cover herself with her hands and arms, and kept backing toward the middle of the street. [Hubbard] kept grabbing and trying to move her hands out of the way so he could see her exposed torso.
At the end of the struggle, a police car came. [Hubbard] walked away, and the victim was in the middle of the street, crying. The victim got into the police car and told the officer what had happened.
Officer Joseph Ellis was patrolling the area in a marked patrol car. He saw a male and female in the street, who appeared to be arguing. He yelled at them to get out of the road. The female turned toward him and yelled, "help," then ran toward the patrol car. Her shirt was ripped, and she appeared upset and panicked. She told Ellis, "that guy tried to rape me or something." The male started to walk away. Ellis twice told him to stop, but he kept walking. Ellis reported the incident on the radio and kept an eye on [Hubbard]. Another unit arrived and detained [Hubbard] down the street. In addition to the victim's ripped shirt, Ellis noticed her left eye was beginning to swell.
Ellis arrested [Hubbard]. A search of [Hubbard's] person revealed four condoms in [Hubbard's] pocket.*fn3
II. GROUNDS RAISED/DEFENSES
In his petition, Hubbard raises three grounds for relief: (1) the trial court erred because it failed to suspend the trial and hold a competency hearing; (2) in allowing the prosecution to file an amended information, the trial court denied him due process; and (3) his assault conviction was not supported by sufficient evidence. Respondent asserts no affirmative defense.*fn4
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), 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."*fn5 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."*fn6 The holding must also be intended to 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.*fn7
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.'"*fn8 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.*fn9 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn10 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn11 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.*fn12
Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*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: Mental Competency Hearing
Prior to the commencement of trial, Hubbard's counsel raised the question of Hubbard's competency to stand trial. The trial court, after hearing counsel's offer of proof, declined to suspend the trial to examine Hubbard's competency. Hubbard contends that he was entitled to a hearing under Cal. Penal Code § 1368(b) and that the failure to hold one also violated his federal due process rights. In rejecting Hubbard's argument, the California Court of Appeal held:
[Hubbard] argues the trial court erred by failing to suspend the trial and hold a hearing to determine competence after his defense counsel declared a doubt regarding his competence to stand trial. [Hubbard] claims the trial court was required to hold a competency proceeding because he presented the court with evidence that raised a reasonable doubt as to his competence. We shall conclude the trial court did not err because no evidence was presented that raised a reasonable doubt.
At the time of the crime, [Hubbard] was living in a transitional group home through the Alta California Regional Program. Six months before [Hubbard's] trial began in August 2006, Alta California Regional Center had Jeffrey ...