The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Michael James Shukry, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Shukry is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Richard J. Donovan Correctional Facility. Respondent has answered, and Shukry has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In February 2004 Shukry was convicted by a jury in the Sacramento County Superior Court of second-degree murder under California Penal Code § 187(a) and assault on a child under the age of eight years resulting in death under California Penal Code § 273ab(a). The trial court sentenced Shukry to an indeterminate prison term of twenty-five years to life. The California Court of Appeal, Third Appellate District, affirmed Shukry's conviction and sentence in an unpublished decision,*fn2 and the California Supreme Court denied review on January 3, 2007. On March 3, 2008, Shukry filed a petition for habeas relief in the Sacramento County Superior Court, which was denied in an unreported, reasoned decision on April 24, 2008. On November 20, 2008, Shukry filed a petition for habeas relief in the California Court of Appeal, Third Appellate District, which was summarily denied without opinion or citation to authority on December 11, 2008, and the California Supreme Court denied review on February 18, 2009. Shukry filed a second-round petition for habeas relief in the California Supreme Court on January 26, 2009, which was denied on February 18, 2009, citing In re Clark, 855 P.2d 729 (Cal. 1993). Shukry filed his Petition for relief in this Court on February 23, 2009.
The factual basis underlying Shukry's conviction as recited in the opinion of the California Court of Appeal:
On December 17, 2001, seven-year-old McImely Dearing fell off a fence and was admitted to the hospital with a head injury. Other than a scrape on his face, following his release from the hospital, McImely appeared fine. [Shukry] was the live-in boyfriend of McImely's mother, Carol Roberts.
On December 26, 2001, McImely was at the home of a neighbor, Gayle Linniger, playing with her children. Although he ate his dinner slowly, Linniger did not notice any signs that McImely was in pain or discomfort and she did not see any bruises on him.
On that same day, [Shukry] had a dispute with his employer and quit his job. Later that evening, [Shukry] told Carol there was something wrong with McImely. Carol found McImely in his pajamas on the floor in his bedroom. She called 911.
[Shukry] initially told Carol he had heard a "bump" and went upstairs and found McImely on the floor. He noticed the boy was making a "snoring" sound which "wasn't right." [Shukry] also told the police this story initially.
William Porter, an emergency medical technician responded to the 911 call. He found McImely unconscious, with irregular breathing and a frothy sputum coming from his mouth.
The next day, [Shukry] told Carol he had been spinning McImely around. A few days later, he told Carol and the police that while he was spinning McImely, McImely struck his head on the couch. He said he did not reveal this detail earlier because he was scared.
When he was interviewed by the police on the morning of December 27, [Shukry] had a scrape on his left arm, several scrapes and cuts on his chest and scrapes and cuts on his left hand.
McImely died at the hospital. An autopsy was performed by forensic pathologists, Doctors Stephany Fiore and Mark Super. They found the cause of McImely's death to be multiple blows to the head, causing subdural hemorrhaging and immediate unconsciousness. McImely was bruised "virtually from head to toe and on every surface of his body[.]" McImely had suffered 39 separate acute impacts to his body and was bruised from head to toe, including the penis and pubic area. Injuries on his hands and feet were consistent with defensive injuries. McImely also had an injury to his abdomen which resulted in a small bowel hemorrhage.
The doctors concluded the injuries would not be caused by a child's normal activities. Upon examination, Dr. Fiore found McImely had suffered a subdural hematoma and retinal bleeding. She also found a traumatic axonal injury which caused the brain to swell. To sustain these kinds of injuries, McImely had to have suffered a blow of significant force to his head. She also concluded he had not sustained a subdural hematoma as a result of the fall on December 17. The abdomen injury was also one which would not occur naturally or by accident, but rather could be caused only by a kick or a punch to the abdomen. Another indication that the injuries were intentionally inflicted was the existence of an optic nerve sheath hemorrhage.
Dr. Angela Rosas also examined McImely. Based on the nature and extent of his injuries, she concluded he had suffered a severe physical assault, consistent with a beating with hands, feet and probably. His injuries from this beating led to his death.*fn3
II. GROUNDS RAISED/DEFENSES
In his Petition, Shukry raises five grounds: (1) ineffective assistance of counsel (failure to present exculpatory evidence); (2) the trial court failed to query the jurors on the issue of jury misconduct; (3) the trial court improperly denied Shukry access to information identifying the jurors; (4) the trial court erred in denying Shukry's motion for a new trial on the basis of jury misconduct; and (5) the trial court erred in allowing into evidence certain inflammatory and gruesome photographs. Respondent contends that the Petition is untimely and that Shukry's second, third, and fourth grounds are unexhausted. Respondent raises no other 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
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.*fn14
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn15 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.*fn16 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.*fn17
Under California's unique habeas procedure, a prisoner who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn18
This is considered as the functional equivalent of the appeal process.*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 This presumption applies to state-trial courts and appellate courts alike.*fn21