The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Michael David Sewell, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Sewell is in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Pleasant Valley State Prison. Respondent has answered. Sewell has not replied.*fn1
I. BACKGROUND/PRIOR PROCEEDINGS
Sewell was convicted following a jury trial in the Sacramento County Superior Court of one count each of making criminal threats (Cal. Penal Code § 422) and misdemeanor battery (Cal. Penal Code § 242). In October 2008 the trial court, after finding that Sewell had suffered eight prior convictions (Cal. Penal Code §§ 667.5(b), 667(b)-(I), 117012) and had served two prior prison terms (Cal. Penal Code § 667.5(a)), sentenced Sewell to an aggregate prison term of thirty-one years to life. The California Court of Appeal, Third Appellate District, affirmed in an unpublished decision,*fn2 and the California Supreme Court denied review on September 1, 2010. Sewell timely filed his Petition for relief in this Court on May 30, 2011.
The California Court of Appeal summarized the facts underlying Sewell's conviction:
On the evening of June 18, 2008, [Sewell] was living with his sister Lisa B. and her three sons, 18-year-old J.J., 15-year-old D.D ., and three-year-old J.D. J.J.'s girlfriend, Cecilia V., was also at the residence that evening.
[Sewell] was asleep on the living room floor and J.D. was playing a video game. Eventually, D.D. told J.D. that it was bedtime and started to put away the game. J.D. began crying and [Sewell] awoke. An argument about the game ensued between [Sewell] and D.D.
[Sewell] pushed D.D. onto the large couch and started choking him with both hands. J.J. ran toward the couch and punched [Sewell] twice in the face to stop him from choking D.D. [Sewell] fell to the ground, letting go of D.D. When [Sewell] stood back up, D.D. grabbed him by the waist and pushed him toward a small sofa. J .J. pinned [Sewell] and D.D. on the sofa.
During the fight, Cecilia V. woke Lisa B. up and advised her that the males were "tussling." The women ran downstairs and found J.J. holding D.D. and [Sewell] in a "bear hug" on the small couch. Lisa B. told J.J. to "let them up" and assured him, "I'm down here, shouldn't be a problem. Let him up." J.J. released D.D. and [Sewell].
Lisa B. told [Sewell] to leave the house. Instead, he ran to the kitchen stating words to the effect, "I'm going to show you how we do this." He grabbed a knife from the knife block and ran toward J.J., repeating, "I'm going to show you how we do this." Seeing [Sewell] approaching J.J., Lisa B. tried to push [Sewell] away but he shoved her backward onto the couch.
Before Lisa B. could stand back up, [Sewell] stabbed J.J. in the back. He fell against the television and onto the ground. J.J. exclaimed, "Mom, mom, he stabbed me," and Lisa B. saw blood "just gushing out." Lisa B. asked [Sewell] why he "did that," and he told her to "[s]hut up." Cecilia V. telephoned the police.
After stabbing J.J., [Sewell] turned to go after D.D. D.D. picked up a glass and threw it at [Sewell]. The glass shattered on the kitchen floor near [Sewell's] feet. [Sewell] told D.D., "I'm going to kill your little ass next." Lisa B. told D.D. to run, and he fled out the front door. [Sewell] tried to chase D.D. but he slipped on the carpet.
[Sewell] ran out the front door to chase D.D. with J.J. and Lisa B. following. J.J. heard [Sewell] yell at D.D., "I'm going to catch you, 'I'm going to catch you." D.D. responded, "You can't catch me, you're too fat, you're too slow." D.D. estimated that [Sewell] chased him for seven to 10 minutes and reentered the house two or three times. [Sewell] brought out a different, two-pronged knife from the house during the chase. At one point, D.D. told [Sewell], "You're lucky my dad wasn't here." [Sewell] responded, "I would have stabbed his ass too." The children's father was serving in Iraq at the time of the incident.
Lisa B. saw [Sewell] go into the house on two occasions and noticed that a knife was in his hand each time he came back out. She heard him threaten D.D. approximately three times, "I'm going to get you. When I get you, when I catch you I'm going to hurt you." [Sewell] had not caught D.D. by the time the police arrived.
[Sewell] previously told D.D. that he had stabbed someone in a fight over cigarettes. Lisa B. warned D.D. daily not to talk back to [Sewell] because he might hit or hurt D.D. when she was not present.
D.D. was afraid of [Sewell] at the time of the incident. He believed that [Sewell] was trying to stab him and would have done so if he had caught him. J.J. also believed that [Sewell] would have stabbed D.D. if he had caught him. [Sewell's] fingerprints were found on the knife used to stab J.J.
A neighbor witnessed part of the incident and generally corroborated the participants' descriptions of events.
The defense rested without presenting any evidence or testimony. In summation, defense counsel theorized with respect to count three that [Sewell] had threatened only to "get" D.D., not to kill him. Counsel argued that, if D.D. was armed with a knife, [Sewell] may have been chasing D.D. for his own protection. On count four, counsel argued that the family members had exaggerated the story and that Lisa B. never was hit or battered or pushed down.*fn3
II. GROUNDS RAISED/DEFENSES
Sewell has raised four grounds: (1) failure of the trial court to instruct sua sponte on self- defense as a defense to making criminal threats; (2) ineffective assistance of counsel in failing to request a self-defense instruction; (3) prejudicial error in permitting the prosecutor to "educate" a witness (witness tampering); and (4) improper characterization of prior (1983) felony convictions as serious felonies. Respondent contends that Sewell's third ground is procedurally barred and that his fourth ground is unexhausted. Respondent asserts no other affirmative defenses.*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
Sewell has not replied to Respondent's answer. 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.*fn18 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.*fn19
Ground 1: Failure to Instruct on Self-Defense
Sewell contends that, because there was substantial evidence that the alleged victim had threatened Sewell, he was entitled to a sua sponte instruction on the theory that self-defense was a defense to the charge of making criminal threats.
[Sewell] contends the trial court erred prejudicially by failing to instruct the jury sua sponte on self-defense in relation to count three (criminal threats). We are not persuaded.
The jury was instructed pursuant to CALCRIM No. 3470 on self-defense as it related to the crimes of assault with a deadly weapon, simple assault, and battery. The instruction was not ...