The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Matthew Wilke Morgan, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Morgan is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Mule Creek State Prison.
Respondent has answered, and Morgan has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
A Sacramento County jury found Morgan guilty of seven counts of lewd or lascivious acts upon a child under the age of fourteen (Penal Code § 288(a)) and two counts of lewd acts upon a child of fourteen or fifteen years of age (Penal Code § 288(c)(1)).*fn1 The Sacramento County Superior Court sentenced Morgan to an aggregate prison term of fifteen years and four months. The California Court of Appeal, Third Appellate District, affirmed Morgan's conviction and sentence in an unpublished decision,*fn2 and the California Supreme Court denied review on October 27, 2010. Morgan timely filed his Petition for relief in this Court on June 23, 2011.
The facts underlying Morgan's conviction are unnecessary to a determination of the issues present in the Petition. Accordingly, they are not recited herein.
II. GROUNDS RAISED/DEFENSE
Morgan raises eight issues in six enumerated grounds, all of which attack the sentence imposed: (1) the trial court erred in imposing the upper term based upon a perceived subornation of perjury in violation of Cunningham*fn3 and Black II,*fn4 and, if deemed forfeited, ineffective assistance of counsel for failing to object at trial; (2) the trial court erred in using Morgan's exercise of his right to a jury trial as an aggravating factor and, if deemed forfeited, ineffective assistance of counsel in failing to object at trial; (3) the trial court abused its discretion and violated due process in denying probation and in imposing consecutive sentences; (4) the imposition of the upper term on one of the counts violated the Ex Post Facto Clause; (5) the imposition of the upper term on one of the counts violated his right to a jury trial and a determination based upon proof beyond a reasonable doubt; and (6) sentencing under Sandoval*fn5 violates the Sixth Amendment right to a jury trial.*fn6
Respondent does not assert any affirmative defense.
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."*fn7 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."*fn8 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.*fn9 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.'"*fn10 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."*fn11 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.*fn12 "[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.'"*fn13 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.*fn14 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.*fn15
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.*fn16
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn17 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.*fn18 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.*fn19
Ground 1: Upper Term (Subornation of Perjury);
In his first ground, Morgan contends that the trial court erred in sentencing him to the upper term based upon the trial court's belief that he was guilty of suborning the victim's testimony at trial. As he did on direct appeal, Morgan acknowledges that defense counsel failed to object at trial, but argues that the failure to object constitutes ineffective assistance of counsel.
The Court of Appeal rejected Morgan's contentions:
To prevail on a claim of ineffective assistance of counsel, [Morgan] must show that trial counsel's representation fell below an objective standard of reasonableness, and there is a reasonable probability that but for counsel's deficient performance the result at trial would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) [Morgan] must satisfy both components. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) Defense counsel has no duty to make futile objections. (People v. Anderson (2001) 25 Cal.4th 543, 587.)
[Morgan] focuses primarily on the court's statements about [Morgan's] connection with S.D.'s perjured testimony at trial. According to [Morgan], the court erred in not making on-the-record findings to support a finding of perjury.
In support, [Morgan] relies on People v. Howard (1993) 17 Cal.App.4th 999. Howard held that a court, when imposing an aggravated sentence because of perjury at trial, is required to make on-the-record findings encompassing all the elements of a perjury violation. (Id. at p. 1004.) The court reasoned: "[A]n aggravated sentence should not be imposed routinely simply because the jury, by convicting the defendant, obviously did not accept his or her testimony . . .. Requiring the trial court to make findings as to the elements of perjury will assure that the imposition of an aggravated sentence because of perjury will be restricted to those cases where perjury has clearly been committed." (Id. at p. 1005.) A failure to set forth the elements is reviewable under the harmless beyond a reasonable doubt standard of review. (Id. at pp. 1004-1005.)
Although the trial court in the present case stated [Morgan] "probably set [S.D.] up with the story" and considered this an "incredibly, incredibly aggravating" factor, the court did not set forth the evidence supporting a perjury charge against [Morgan]. (§ 127.) [Morgan] contends ...