The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Timothy Wayne Perry, Jr., a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Perry is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Salinas Valley State Prison, in Salinas, California. Respondent has filed an answer, and Perry has filed a traverse.
On March 12, 2007, a jury convicted Timothy Wayne Perry of two counts of second degree robbery and one count of assault with a semiautomatic firearm. The jury also found true gun-use enhancements as to all three counts. The court found true two prior serious felony and prior strike allegations and sentenced Perry to a total prison term of 38 years, four months.
Perry's conviction and sentence were affirmed by the California Court of Appeal, First District, in a reasoned, unpublished decision on January 13, 2009.*fn1 The California Supreme Court denied review on April 15, 2009.
Perry filed a petition for a writ of habeas corpus in the Superior Court of Solano County which was denied on September 17, 2009. Perry then filed a petition for habeas corpus in the California Court of Appeal which denied the petition on November 13, 2009. Perry's subsequent petition for review was denied on February 3, 2010, by the California Supreme Court.
On March 5, 2010, Perry timely filed a Petition for a Writ of Habeas Corpus in this Court. In his Petition, Perry raises nine grounds for relief:
1. His Sixth Amendment right to a fair trial was violated because Juror No. 12 stated that she would be positively biased;
2. His trial counsel was ineffective for failing to object to Juror No. 12 after she informed the court she would be positively biased;
3. The trial court abused its discretion by denying his motion to release the jurors' contact information to him;
4. His right to a fair trial under California Rules of Court Standard 10.20 was violated by allowing Juror No. 12 to serve;
5. Jurors violated the admonition not to discuss the case before deliberations;
6. Juror No. 12 was actually biased against Perry;
7. Juror No. 12 was implicitly biased against Perry;
8. Ineffective assistance of appellate counsel, and;
9. Juror No. 12 violated the jury instructions not to be biased against Perry.
Respondent does contend that any of Perry's grounds for relief are unexhausted or procedurally barred.
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."*fn2 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."*fn3 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.*fn4 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.'"*fn5 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.*fn6 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.*fn7 "[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.'"*fn8 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.*fn9 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.*fn10
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn11
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn12 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn13 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn14
A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits."*fn15 When there is no reasoned state court decision denying an issue presented to the state, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."*fn16
"The presumption may be overcome when there is reason to think that some other explanation for the state court's decision is more likely."*fn17 Where the presumption applies, this Court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn18 In so doing, because it is not clear that it did not so do, the Court presumes that the state court decision rested on federal grounds,*fn19 giving the presumed decision the same deference as a reasoned decision.*fn20 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. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn21
"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn22
As noted above, Perry raises nine grounds for relief. With the exception of his third ground, none of Perry's grounds were raised on direct appeal. When Perry first raised the grounds in his petition for habeas corpus in the Solano County Superior Court, the court held that his claims were procedurally barred because he did not raise them on direct appeal. Normally, this would be enough to prevent this Court from hearing these claims, however, inexplicably, Respondent has failed to raise the procedural bar as an affirmative defense. Accordingly, it is deemed waived.*fn23 ...