The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Charles Anthony Wallace, a state petitioner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Wallace is currently in custody of the California Department of Corrections, incarcerated at the Folsom State Prison in Represa, California. Respondent has answered.*fn1 Wallace has filed a traverse.*fn2
The following factual background is taken from the reasoned decision of the California Court of Appeal in this case:
[Wallace] and the victim, Tierra Miller, had what Miller described as an "off and on" relationship for five years. [Wallace] and Miller lived together for part of that period.
On January 13, 2004, [Wallace] and Miller were living apart; [Wallace] with his mother and Miller with a girlfriend. They had not been intimate for a couple of weeks, but Miller had spent the previous night with [Wallace] at his mother's house. She considered her relationship with [Wallace] to be "[j]ust like a friend."
[Wallace] telephoned Miller on the afternoon of January 13th to plan another get-together. [Wallace] caught up with Miller that night in the parking lot of a Kmart store on Howe Avenue. Miller and her best friend Jessica had taken their children to the parking lot to skate. Miller brought her backpack because she and her daughter were supposed to stay at defendant's mother's house again that night.
[Wallace] got out of his car and asked to talk to Miller alone. Miller gave Jessica her backpack and asked her to take Miller's daughter home. Miller talked with [Wallace] in the parking lot for at least 10 minutes. She told him she did not think their relationship was working and asked [Wallace] "if [they] could just be friends." [Wallace] told Miller to get in his car and she refused. At that point, [Wallace] pulled a steak knife out of his sweatshirt and repeated his demand that Miller get in the car. [Wallace] indicated he would have hurt Miller if she "didn't have [her] bag." Miller recounted that [Wallace] continued by saying, "[G]et in the car. And he was like I'm not going to do nothing to you.... Let's just go get some cigarettes." Although Miller did not want to go with defendant, she was too afraid of [Wallace] to walk back to Jessica's house. Based on defendant's facial expression and tone of voice, Miller sensed that he was "real mad" at her. She said, "I knew he wasn't playing."
[Wallace] opened the passenger door and Miller got into the car. [Wallace] closed the passenger door and quickly moved to the driver's seat. He placed a six and one-half inch knife on the arm rest between Miller and himself. Miller leaned against the passenger door, as far away from [Wallace] as she could get. [Wallace] drove past a nearby store that sold cigarettes and told Miller they were driving to a different store where the cigarettes were cheaper. [Wallace] also told Miller, "it's not going to be over that eas[ily]." While they were driving, Miller grabbed the knife and tossed it out the open car window. [Wallace] did not say anything.
[Wallace] drove to his mother's house. When they arrived, [Wallace] told Miller that if she started to complain about his behavior or ask for help, he would beat her up. Once inside the house, [Wallace] and Miller sat down at opposite ends of the couch and continued to discuss their relationship. The discussion started off calm and became more heated when Miller told [Wallace] she wanted to end the relationship.
Miller went into defendant's niece's bedroom to call her brother for a ride home. Miller dialed the telephone and leaned her body against the door to prevent [Wallace] from entering the room. [Wallace] pushed open the door, took away the phone, and punched Miller in the face and upper body. The blow to Miller's face broke her glasses. [Wallace] grabbed Miller by her hair and pulled her part way through the door into the hall.
Defendant's mother came up and said, "[e]ither you guys going to work it out or you guys are going to leave each other alone." Miller ran into defendant's mother's room. Defendant's mother followed. [Wallace] remained in the hallway, talking to Miller through the door. When Miller was unable to reach her brother by phone, [Wallace] offered to drive her home. Miller reluctantly accepted the offer.
Once in the car, [Wallace] said he needed to stop at a friend's house. Miller stayed in the car while [Wallace] went inside. [Wallace] returned and started driving toward Miller's house. A few minutes later, he pulled out a large butcher knife and placed in on his lap. [Wallace] told Miller, "[you] thought [you] was slick for throwing out the other knife. But when I get around this corner, it's cracking." [Wallace] said, "if I can't have you, nobody will." Miller believed [Wallace] was threatening to take her to a secluded area off Winters Road and kill her.
Miller grabbed the steering wheel in an attempt to swerve and attract the attention of other motorists. [Wallace] punched her twice in the chest. Miller screamed for help, unbuckled her seat belt, opened the passenger door, and jumped out of the moving car. After rolling on the ground, she got up and ran toward an approaching car. Miller felt pain in her leg, arm, and in the back of her head.
The man who picked up Miller took her to a 76 gas station and called 911 on the pay phone. Miller did not want him to call the police because she feared retaliation from [Wallace] and did not want to get [Wallace] into trouble. However, once her rescuer got through to 911, Miller spoke to the operator. The prosecution played an audiotape of the 911 call to the jury.
On the following day, Miller took the train to Toledo, Ohio, where her father lives. She testified she left because she feared for her safety and "didn't want anything else to happen." She was living in Toledo, Ohio, at the time of trial.
Robert Bruce Smith was driving on Grand Avenue between 9:30 and 10:00 p.m. on January 13, 2004. He observed the car ahead of him moving between two lanes of the street. The car appeared to be slowing down or getting ready to stop in the middle of the road. Almost immediately, a young woman, later identified as Miller, opened the passenger door and started to get out. The car was still moving at five or six miles an hour. Miller lost her footing and "went down to her knee, probably onto her back, and then immediately got up." Miller appeared to be hysterical. She ran toward Smith's car and yelled, "Help me. He's going to kill me. Help me."
Initially, Smith was apprehensive, suspecting a possible set up. But Miller's actions convinced Smith that Miller needed help. He unlocked the passenger door of his car and Miller got in. Meanwhile, [Wallace] got out of his car and looked in the direction of Smith's car. Smith testified [Wallace] looked perplexed or confused.
Still apprehensive, Smith sped away from the area. He got on Interstate 80 and drove to a 76 gas station. Miller, upset and crying, told Smith that, "she had gone to a market with some friends or friend and this person had caught up with her and basically taken her at knifepoint away from where she was and they wound up there." Miller told Smith that [Wallace] had punched her. She wanted to go home, but Smith insisted on calling the police.
Sacramento County Sheriff's Deputy Arthur Ward responded to the 911 call. He contacted Miller at the 76 gas station at Orange Grove and Watt Avenue. He stated that "[s]he looked very shaken up, very nervous, [and] a little banged up." Ward observed "road rash," abrasions on Miller's arm and right knee. Her right foot was swollen. In addition to the visible injuries, Miller complained of pain in the back of her head, chest, and foot. Deputy Ward described Miller as "extremely skittish" and "kind of scattered." He suspected Miller was in shock.
Ward interviewed Miller for 20 to 30 minutes as she sat in the back seat of his patrol car waiting for an ambulance. She told Ward that [Wallace] hit her in the head and chest in both the house and the car, but Ward was unable to determine which injuries occurred in which location. Miller also said she caught her foot when she jumped out of defendant's car and "that's when she was drug." On cross-examination, Ward testified that Miller said she initially got into defendant's car at a 99 Cent Store after [Wallace] told her, "I've got a knife and I'll slit your throat right here. So you better just get in the car." Miller testified she could not recall making that statement.
Paramedic Brenden Brown arrived at the 76 gas station at 10:05 p.m. Brown testified that Miller complained of pain to her left jaw, her right foot, and the back of her head. He observed a minor contusion or swelling on the left side of the back of Miller's head. Miller was transported to Mercy San Juan Hospital.
The prosecution introduced evidence of four prior acts of domestic violence by defendant. Miller testified that in July 2003, during a time when she and [Wallace] were not getting along, [Wallace] approached her at her brother's house and demanded the key to her apartment. [Wallace] said he wanted to take a shower. Miller refused and [Wallace] responded by saying something to the effect of "you know what's going to happen." When Miller started to go to work the next morning, she discovered that the front and back windows of her car were smashed and her tires were slashed. [Wallace] telephoned her and said, "have a nice day at work."
Another incident occurred in May 2002. Miller and [Wallace] were arguing in a car, probably because [Wallace] had accused her of cheating. [Wallace] grabbed both of Miller's arms, pushed her down, and threw her cell phone across the parking lot.
Miller also testified about an incident in December 2001, when she and [Wallace] were living together. He put her in a headlock and held her so tight she could hardly breathe. She screamed for him to let her go. After about two minutes he let go and threw her on the bed.
Annette Perry testified that she had dated [Wallace] about 10 years before. [Wallace] lived with Perry off and on for almost three years. Perry described an incident that occurred in September 1995. She and [Wallace] were at a gas station. Perry saw a friend in a car and walked over to talk to him. Before she could finish the conversation, [Wallace] came up and hit her in the face so hard she fell to the ground. Perry screamed for help, but no one at the gas station came. [Wallace] came back and took her home. He cried, apologized, and asked Perry not to call the police.
The court permitted the defense to cross-examine Miller about an incident that occurred in August 2001. Miller acknowledged that police officers had approached her with a warrant and tried to arrest her. She also acknowledged that she yelled and aggressively attempted to get away. However, Miller could not remember kicking anyone or having her hands and feet tied. On redirect, Miller testified that she regretted the incident and stated that it did not make her a dishonest person.*fn3
II. BACKGROUND/ PRIOR PROCEEDINGS
On October 8, 2004, a jury convicted Wallace of kidnapping (Cal. Pen. Code, § 207(a)) (Count one), making criminal threats (Cal. Pen. Code, § 422) (Count two), willful infliction of corporal injury on a former cohabitant (Cal. Pen. Code, § 273.5(a)) (Count three), and misdemeanor assault (Cal. Pen. Code, § 240) (Count four). In a separate proceeding, the jury found true the allegation Wallace had a prior conviction for first degree burglary (Cal. Pen.Code, § 459) within the scope of the California Three Strikes law. The court sentenced Wallace to 10 years in prison.*fn4
On April 12, 2006, the California Court of Appeal, Third District, affirmed the judgment in a reasoned, unpublished decision.*fn5
On April 27, 2006, Wallace filed a petition for rehearing in the California Court of Appeal, Third District.*fn6 The petition was denied on May 12, 2006.*fn7
On May 22, 2006, Wallace filed a petition for review in the California Supreme Court.*fn8
On July 26, 2006, the court denied the petition.*fn9
On February 15, 2007, Wallace filed a petition for writ of habeas corpus in the Sacramento County Superior Court.*fn10 On April 16, 2007, the Superior Court denied the petition.*fn11
On June 5, 2007, Wallace filed a petition for writ of habeas corpus in the California Court of Appeal, Third District.*fn12 On June 14, 2007, the court denied the petition.*fn13
On August 7, 2007, Wallace filed a petition for writ of habeas corpus in the California Supreme Court.*fn14 On January 16, 2008, the court denied the petition.*fn15
On April 11, 2008 Wallace timely filed a Petition for Writ of Habeas Corpus in this Court. Wallace raises thirteen grounds for relief:
1. Ineffective Assistance of Counsel: Counsel failed to call Janice Haskins (Wallace's mother) who would have provided exculpatory testimony.
2. Prosecutorial Misconduct: Prosecutor induced Miller (victim) to testify falsely by threatening her with jail if she did not cooperate.
3. Ineffective Assistance of Counsel: Counsel failed to interview Miller, whose statements would have exculpated Wallace.
4. Ineffective Assistance of Counsel: Refusal to allow Wallace to take the stand.
5. Ineffective Assistance of Counsel: Conflict of interest: the Public Defender's Office represented Miller on 4 prior occasions.
6. Prosecutorial Misconduct: Prosecutor pressured Miller into not speaking with defense counsel.
7. Ineffective Assistance of Counsel: Counsel was ignorant of the law regarding subpoenaing an out of state witness (Miller), and this ignorance prejudiced Wallace.
8. Ineffective Assistance of Counsel: Counsel failed to call a witness who would have testified to Wallace's non-violent character and reputation for non-violence.
9. Trial Court Applied Inconsistent Standards of Admissibility to Defense and Prosecution: The trial court admitted Wallace's prior acts of domestic violence while excluding evidence of Miller's prior assaults on Wallace.
10. Trial court erred by not granting defense's request for a Mayberry instruction.
11. Trial court erroneously allowed a Deputy Sheriff to testify that victims often give more accurate statements several days after the incident AND that the Miller did not seem to be making up her story.
12. Prosecutorial Misconduct: Prosecutor improperly vouched for Miller's credibility and also asked jurors to consider the lack of certain evidence.
13. There was insufficient evidence to show that Wallace's conduct resulted in a "traumatic condition."
Respondent contends that all but one of Wallace's grounds are properly exhausted, and
Respondent waives the defense of exhaustion with regard to that claim. Respondent contends that Wallace's second and sixth ground are procedurally barred.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, 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 rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn16 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."*fn17 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.*fn18 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.'"*fn19 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.*fn20 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.*fn21 "[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.'"*fn22 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.*fn23 Petitioner "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn24
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn25 In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts ...