The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Richard L. Atkins, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Atkins is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at Pelican Bay State Prison. Respondent has answered. Atkins has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, in August 2005 Atkins was convicted in the San Joaquin Superior Court of second-degree robbery, Cal. Penal Code § 211, with personal use of a firearm, Cal. Penal Code § 12022.53(b), and of possessing a firearm as a convicted felon, Cal. Penal Code § 12021(a)(1), with findings that he wore body armor, Cal. Penal Code § 12022.2(b), and that he had a prior serious felony conviction, Cal. Penal Code §§ 667(a)(1), 667(d), 667.5(b), 969, and 1170.12(b), for shooting at an inhabited dwelling, vehicle, etc., Cal. Penal Code § 246. The trial court sentenced Atkins to an aggregate prison term of twenty-three years. The California Court of Appeal affirmed Atkin's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on February 16, 2010. Atkins timely filed his Petition for relief in this Court on June 23, 2010.
Because they are unnecessary to a determination of the issues raised in the Petition, the facts underlying Atkins's conviction are not repeated here.
II. GROUNDS RAISED/DEFENSES
In his Petition, Atkins raises two grounds: (1) by asking Atkins about his failure to pass on information to the prosecution earlier, the prosecutor violated his Fifth Amendment right to remain silent; and (2) the prosecutor improperly interjected his personal opinion of Atkins's guilt in his closing summation. Respondent does not assert any affirmative defense.*fn2
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."*fn3 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."*fn4 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.*fn5 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.'"*fn6 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."*fn7 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.*fn8 "[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.'"*fn9 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.*fn10 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.*fn11
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.*fn12
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn13 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.*fn14 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.*fn15
Initially, this Court notes that Atkins's Petition does not adequately comply with the requirement that a petition set forth all the facts that support the grounds raised.*fn16 Atkins carries the burden of proving by a preponderance of the evidence that he is entitled to habeas relief.*fn17
This Court is neither required, nor is it inclined, to plumb the record for facts to support a petitioner's claims. Consequently, this Court refers solely to the facts as recited by the California Court of Appeal in determining Atkins's entitlement to relief.*fn18
Atkins has also failed to file a Traverse. 28 U.S.C. § 2248 provides: The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true. Under § 2248, where there is no denial of the Respondent's allegations in the answer, or the denial is merely formal and unsupported by an evidentiary basis, the court must accept Respondent's allegations.*fn19 Where a petitioner has not disputed a contention in the response and it does not appear from the record before the court that the contention is erroneous, the court may accept that contention.*fn20
Ground 1: Prosecutor's Questions/Comments on Post-arrest Silence Atkins contends that the prosecutor asked Atkins on cross-examination why he did not pass on information concerning the story he told at trial to the prosecutor earlier. Atkins argues that this violated his Fifth ...