The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Leathan Renfrow, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Renfrow is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Pleasant Valley State Prison. Respondent has answered. Renfrow has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In December 2002 Renfrow entered a negotiated plea in the Placer County Superior Court of no contest to assault by means likely to produce great bodily injury and admitted a great bodily injury ("GBI") enhancement under California Penal Code §§ 245(a)(1) and 12022.7. The trial court suspended imposition of sentence and placed Renfrow on formal probation. Renfrow did not appeal his conviction or sentence.
In May 2004, after Renfrow admitted violating a condition of probation, the trial court revoked probation, imposed the middle term of three years for the felony assault conviction, suspended execution of that sentence, and reinstated him on formal probation. The trial court did not mention the GBI enhancement. In December 2004 Renfrow admitted violating another condition of probation by possessing a controlled substance. The prosecutor agreed to a five-year disposition, low term [for the felony assault conviction] plus three years [for the GBI enhancement], for Renfrow's acknowledgment of guilt in this violation of probation. The trial court revoked probation, declined Renfrow's request to strike the GBI enhancement, and ordered the execution of an aggregate term of five years (two years for felony assault and three years for the enhancement). Renfrow timely appealed that decision and on October 26, 2005, the California Court of Appeal, Third District, affirmed in an unpublished decision.*fn1
Renfrow subsequently filed a petition for writ of habeas corpus in the Placer County Superior Court, claiming the term of five years was an unlawful increase in the sentence that had been previously imposed and suspended.*fn2 The superior court held that the trial court had no jurisdiction to change the sentence of three years imposed and suspended after Renfrow's last violation of probation, and that defense counsel was ineffective for failing to object to the five-year term. The superior court granted the petition for writ of habeas corpus, deemed the GBI enhancement to have been stricken, and ordered the clerk to prepare an amended abstract of judgment showing the correct sentence to be the imposition of the middle term of three years on Count One for violation of Penal Code § 245(a)(1). On appeal, the California Court of Appeal, Third District, reversed and remanded the matter to the Superior Court with directions to deny the writ.*fn3 The California Supreme Court summarily denied review on October 23, 2008. On June 8, 2009, Renfrow filed a petition for habeas relief in the California Supreme Court, which was summarily denied on July 8, 2009. Renfrow timely filed his Petition for relief in this Court on August 3, 2009.
II. GROUNDS RAISED/DEFENSES
In his Petition, Renfrow raises two grounds:*fn4 (1)
the trial court's correction of the sentence, i.e., adding back in the
GBI enhancement, violated his federal right of due process;*fn5
(2) counsel was ineffective for failing to raise this issue on appeal.*fn6 Respondent does not assert any affirmative defense.*fn7
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."*fn8 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."*fn9 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.*fn10 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.'"*fn11 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."*fn12 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.*fn13 "[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.'"*fn14 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.*fn15 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.*fn16
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.*fn17
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn18 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.*fn19 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.*fn20
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.*fn21
This is considered as the functional equivalent of the appeal process.*fn22 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.*fn23 This ...