The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Darius Ramone James, a state prisoner appearing through counsel, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. James is currently in the custody of the California Department of Corrections incarcerated in the High Desert State Prison. Respondent has answered, and James has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
James was convicted by a Sacramento County jury of forcible sodomy (Cal. Penal Code § 286(c)(2)), inflicting corporal injury on a spouse (Cal. Penal Code § 273.5), making a criminal threat (Cal. Penal Code § 422), and resisting or delaying a peace officer (Cal. Penal Code § 148(a)(1)). In a bifurcated trial, James was found to have a prior serious felony (Cal. Penal Code §§ 667, 1170.12). In December 2008 the Sacramento County Superior Court sentenced James to an aggregate prison term of fourteen years four months. The California Court of Appeal, Third Appellate District, affirmed James's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on September 22, 2010. James timely filed his Petition for relief in this Court on August 25, 2011.
The California Court of Appeal summarized the factual and procedural background:
At trial, law enforcement officers testified to the victim's statements describing a physical and sexual assault by [James], but the victim herself testified and recanted her prior statements. Evidence adduced at trial included the following: On May 5, 2008, [James], his pregnant wife, their infant daughter, and wife's five-year-old son, all of whom had been staying at the home of [James's] mother, stayed at a Motel 6. In the morning, the victim went to the motel office with her children and called 911. The transcript of the 911 call shows she reported:
"He threatened to choke me- "911 OPERATOR: Okay. What's your name? "[VICTIM]: -kill me if I call the police."
The victim reported, "first he hit me in my eye, and then he, um, and then he, um, um, hit me again. And now it's just like I didn't even know I got-now I got a black eye, but he threatened that he's gonna kill me if I call the police officers and all this stuff." She also said, "he hit me in my face last night, and he, um, he-and he al-he almost, um rape me in my (Unintelligible). He did though. I start [sic ] bleeding. He started rape-started rape [sic ] me in my butt. (Unintelligible)."
Responding sheriff's deputies detained [James] as he drove away from the motel and captured him when he ran.
A deputy saw apparent blood in the motel room sink and discoloration to the victim's left eye.
At the hospital, the victim told a deputy that, that night, the family went to buy marijuana. On the drive back to the motel, the victim, who thought [James] might be bisexual, asked if [James] ever had sex with a man. [James] got angry, struck the victim in the face, and said, "Watch when we get back to the motel."
Back in the motel room, [James] told the boy to go into the bathroom, forcibly inserted his penis in the victim's "butt" and sodomized her against her will, despite her pleas for him to stop. [James], at six feet, three inches in height and about 250 pounds, is almost a foot taller and 140 pounds heavier than the victim. He told her not to scream and, if she did, he would "stuff a wash rag" in her mouth. She yelled anyway, because it hurt. After he finished, [James] told her that if she reported the incident or told anyone about it, he would kill her. He told her not to try to leave the room. She was afraid. [James] sodomized her over a year earlier but promised never to do it again. In the morning, [James] left, and the victim ran to the motel office and called 911. She was grateful when the deputies arrived because [James] "probably would have killed" her.
A physician's assistant, testifying as an expert in sexual assault examinations, testified he spoke with and examined the victim. She said [James] forced her to have anal sex, which caused her pain and anal bleeding. The physician's assistant observed the victim had bruised eyelids, a small amount of apparent blood on her underwear, and several small anal tears about two to four millimeters. There was no indication of hemorrhoids. The expert could not say whether any penetration was consensual.
Days after the attack, the victim applied for a restraining order but apparently let the matter drop. Her declaration under penalty of perjury attested that [James] injured her eyes and back and said, "He said he was going to kill me if I leave him." There was no specific reference to the sodomy. The victim also filed for legal separation but did not follow through.
A victim advocate from the District Attorney's office testified she met with the victim on June 4, 2008, to review her statement. The victim refused to confirm or deny her prior statement to police. She said [James] was controlling, and she wanted him to get "batterer's treatment," but she said she was not fearful and did not want him prosecuted.
At trial, the prosecution called the victim as a witness. The victim testified [James] did nothing wrong; her statements to the police were lies; and she contacted the District Attorney's office several times to say she lied. She lied to police because she was upset with [James] for taking the car and jealous because she believed he was seeing one of the other women with whom he had a baby. [James] never struck her and never sexually assaulted her. He does not have anger problems. She called 911 because he was taking her car, and she wanted it back. She had consensual vaginal intercourse with [James] that night. They did not have anal sex that night, and [James] never forcibly put his penis in her anus. All their sex was consensual. She did not remember any threats and was not in fear. She had hemorrhoids. She had no blood in her panties. When shown a photograph of her bruised face, she said her infant daughter accidentally hit her with a brush. The victim also denied any previous abuse. Her prior reports were lies she made up because she was angry and jealous. She loves her husband. She is not afraid of him, but she admitted she told the deputy that she was afraid of [James]. She admitted she asked the motel clerk to lock the office door while she called 911, but she claimed at trial the reason for the request was that she was afraid [James] would take her wedding ring, as he did in past fights.
Law enforcement officers testified to prior contacts with the victim. On April 29, 2005, she reported that [James] pushed her and struck her when she became jealous about a woman telephoning him. On December 24, 2006, she reported to law enforcement that [James] punched her four times in the head and once in the stomach, spread her "ass cheeks," spit on her anus and stuck his penis in her, after which she bled from her anus. He then raped her and sodomized her again. She wanted a restraining order but not a physical examination. The deputy observed redness and swelling around the victim's left eye. On January 10, 2008, she reported that [James] pushed her and her son out of a car, injuring her finger, and then drove off. The responding officer saw no visible injury to the finger. The victim was upset that [James] had the car, because she needed it for errands.
Latoya Freeman, who bore [James] two sons but never married him, testified he gave her several black eyes and choked her twice during their relationship. After their relationship ended, he stalked her, threatened her, and once displayed a handgun.
[James] did not testify. The defense recalled the victim to the witness stand. She testified the red in the sink was not blood but juice from cherries she ate. She had a bit of blood in her rectal area, but it was from hemorrhoids. There was no nonconsensual anal sex. What might have caused the anal tearing was that she had consensual anal sex with [James] a couple of days before their motel stay.
In the prosecution's rebuttal case, Angela Davis testified she and [James] were co-workers in October 1999, when he tried to kiss her while they were watching a movie at his house. When she demurred, he set a gun on the coffee table and raped her and later took her home.*fn2
II. GROUNDS RAISED/DEFENSES
James raises four grounds: (1) that the trial court erred in failing to give a unanimity instruction on the charge of criminal threats sua sponte; (2) that the trial court erred in refusing to instruct that prior consensual sex could be considered on the issue of consent and the defense of reasonable and good faith belief as to consent; (3) that the the trial court erred in not granting a mistrial on the basis of non-responsive answers; and (4) that the trial court erred in instructing that prior acts need only be established by a preponderance of the evidence. Respondent raises no affirmative defenses.
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
Ground 1: Instructional Error -- Unanimity
James was convicted of uttering criminal threats. James contends that the evidence suggested three separate, distinct threats at different times and places, including: (1) the statement "watch when we get back to the motel"; (2) the threat to put a rag in her mouth during anal intercourse; and (3) the threat to kill the victim if she called the police. James argues that, although such an instruction was not requested, the trial court erred in not sua sponte instructing the jury that they must unanimously agree on which act James committed that constituted a criminal threat. The California Court of Appeal rejected James's argument.
[James] complains the trial court prejudicially erred in failing to instruct the jurors sua sponte that they must unanimously agree on which act constituted the criminal threat (§ 422) in count three. We see no grounds for reversal.
When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. ( People v. Russo (2001) 25 Cal.4th 1124, 1132.) This unanimity requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. (Ibid.) When a defendant is charged with a single count of making a criminal threat, and the evidence shows more than one criminal threat was made, the prosecution must either make an election of the threat for which a conviction is sought, or the trial court must give a jury unanimity instruction. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539.).
Count three alleged [James] made a threat to commit a crime which would result in "death and great ...