The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
MEMORANDUM DECISION and ORDER
[Re: Motions at Docket Nos. 31 and 33]
Theron Kenneth Holston, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Holston is currently in the custody of the California Department of Corrections and Rehabilitation, on parole. Respondent has answered, and Holston has replied. At Docket No. 31 Holston has requested the appointment of counsel, and at Docket No. 33 a request for immediate release on his own recognizance.
I. BACKGROUND/PRIOR PROCEEDINGS
Holston was charged in an information
of second-degree burglary (Penal Code § 211) and misdemeanor assault
(Penal Code § 245).*fn1 In addition as to the
second-degree burglary charge, the information alleged that Holston
had served four prior prison terms (Penal Code § 667.5(b)), including
possession of a controlled substance (Cal. Health & Safety Code §
11377), possession of an incendiary device (Penal Code § 453(b)),
obstructing an executive officer (Penal Code § 69), and indecent
exposure (Penal Code § 314.1). On December 1, 2009, Holston entered
into a negotiated plea agreement whereby he pleaded no contest to a
substituted petty theft charge with a prior (Pen. Code § 666) on the burglary count, admitted a prior
theft-related conviction, and admitted two prison priors, possession
of an incendiary device (Penal Code § 453(b)) and obstructing an
executive officer (Penal Code § 69). The misdemeanor assault charge
and the other two priors were dismissed. The same day, the Yuba County
Superior Court sentenced Holston in accordance with the negotiated
plea agreement to the stipulated sentence of five years in prison. The
trial court awarded Holston 205 days of custody credits, including 137
actual days and sixty-eight days of conduct credits. The California
Court of Appeal, Third Appellate District, affirmed Holston's
conviction and sentence in an unpublished decision.*fn2
The California Supreme Court summarily denied review on
November 10, 2010, and the Supreme Court denied certiorari on October
3, 2011.*fn3 Holston timely filed his Petition for
relief in this Court on February 14, 2011, and his Amended Petition
with leave of court on November 30, 2011.
While his appeal was pending Holston, appearing pro se, initiated as series of petitions for habeas relief in the state courts.
First Round: A petition in the Sacramento County Superior Court (RIC10012462), which was denied on July 2, 2010; on July 28, 2010, a petition in the Court of Appeal (C065674), which was summarily denied without opinion or citation to authority on August 5, 2010; and on September 14, 2010, a petition in the California Supreme Court (S186564), which was also summarily denied on May 11, 2011.
Second Round: On November 24, 2010, a petition in the Sacramento County Superior Court (HC RR 10-0000029), which was denied on February 8, 2011. On February 8, 2011, a petition in the California Court of Appeal (9C067491), which was summarily denied March 3, 2011, and on March 14, 2011, in the California Supreme Court (S191373), which was denied on May 11, 2011, citing In re Miller (1941) 17 Cal.2d 734, 735 [112 P.2d 10].
Third Round: On April 21, 2011, a petition for habeas relief in the California Court of Appeal (C067963), which was summarily denied without opinion or citation to authority, and the California Supreme Court denied review on June 29, 2011 (S192935).
Fourth Round On November 14, 2011, a petition in the California Court of Appeal (C069688), which was summarily denied on June 25, 2012.*fn4
The facts underlying his plea are well known to the parties and are not relevant to the issues raised. Consequently, they are not repeated here.
II. GROUNDS RAISED/DEFENSES
In his Amended Petition Holston raises four grounds: (1) ineffective assistance of appellate counsel; (2) application of Penal Code § 666(b) violated the Ex Post Facto Clause; (3) the finding that Holston was an offender as defined in Penal Code § 666(b), i.e., a registered sex offender, was not properly pleaded or proven; and (4) the trial court's finding that he was an offender as defined in Penal Code § 666(b) was based upon insufficient evidence. Respondent does not assert any affirmative defenses.
In his Petition, Holston requests a veritable cornucopia of relief, including: (1) that his good conduct credits be increased to a total of 273 days; (2) that the sentence be vacated and amended to provide for six months in the county jail; (3) that the count to which he entered his guilty plea be amended to be a misdemeanor under Penal Code § 484, 488 (petty theft), and the remaining two prison term allegations be stricken; (4) that the fines and restitution awards be waived; and (5) that his immediate release be ordered.
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
A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits."*fn22 When there is no reasoned state-court decision denying an issue presented to the state, "it may be presumed that the state court adjudicated the claim on the merits in the ...