OCTOBER TERM, 2002
Syllabus
LOCKYER, ATTORNEY GENERAL OF CALIFORNIA
v.
ANDRADE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 01-1127. Argued November 5, 2002-Decided March 5, 2003
California charged respondent Andrade with two felony counts of
petty theft with a prior conviction after he stole approximately
$150 worth of videotapes from two different stores. Under
California's three strikes law, any felony can constitute the third
strike subjecting a defendant to a prison term of 25 years to life.
The jury found Andrade guilty and then found that he had three
prior convictions that qualified as serious or violent felonies
under the three strikes regime. Because each of his petty theft
convictions thus triggered a separate application of the three
strikes law, the judge sentenced him to two consecutive terms of 25
years to life. In affirming, the California Court of Appeal
rejected his claim that his sentence violated the constitutional
prohibition against cruel and unusual punishment. It found the
Solem v.
Helm, 463 U. S. 277,
proportionality analysis questionable in light of
Harmelin
v.
Michigan,
501 U. S. 957. It then
compared the facts in Andrade's case to those in
Rummel v.
Estelle, 445
U. S. 263-in which this Court rejected a claim that a life
sentence was grossly disproportionate to the felonies that formed
the predicate for the sentence,
id., at 265-and concluded
that Andrade's sentence was not disproportionate. The California
Supreme Court denied discretionary review. The Federal District
Court denied Andrade's subsequent habeas petition, but the Ninth
Circuit granted him a certificate of appealability and reversed.
Reviewing the case under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), the latter court held that an
unreasonable application of clearly established federal law under
28 U. S. C. § 2254(d)(1) occurs when there is clear error;
concluded that both
Solem and
Rummel remain good law
and are instructive in applying
Harmelin; and found that the
California Court of Appeal's disregard for
Solem resulted in
an unreasonable application of clearly established Supreme Court
law and was irreconcilable with
Solem, thus constituting
clear error.
Held: The Ninth Circuit erred in ruling that the
California Court of Appeal's decision was contrary to, or an
unreasonable application of, this Court's clearly established law
within the meaning of § 2254(d)(1). Pp.70-77.
64
Syllabus
(a) AEDPA does not require a federal habeas court to adopt any
one methodology in deciding the only question that matters under §
2254(d)(1)-whether a state court decision is contrary to, or
involved an unreasonable application of, clearly established
federal law. In this case, this Court does not reach the question
whether the state court erred, but focuses solely on whether habeas
relief is barred by § 2254(d)(1). Pp. 70-71.
(b) This Court must first decide what constitutes such "clearly
established" law. Andrade claims that
Rummel, Solem, and
Harmelin clearly establish a principle that his sentence is
so grossly disproportionate that it violated the Eighth Amendment.
Under § 2254(d)(1), "clearly established Federal law" is the
governing legal principle or principles set forth by this Court at
the time a state court renders its decision. The difficulty with
Andrade's position is that the Court has not established a clear or
consistent path for courts to follow in determining whether a
particular sentence for a term of years can violate the Eighth
Amendment. Indeed, the only "clearly established" law emerging from
the Court's jurisprudence in this area is that a gross
disproportionality principle applies to such sentences. Because the
Court's cases lack clarity regarding what factors may indicate
gross disproportionality, the principle's precise contours are
unclear, applicable only in the "exceedingly rare" and "extreme"
case.
Harmelin, supra, at 1001 (KENNEDY, J., concurring in
part and concurring in judgment). Pp.71-73.
(c) The California Court of Appeal's decision was not "contrary
to, or involved an unreasonable application of," the clearly
established gross disproportionality principle. First, a decision
is contrary to clearly established precedent if the state court
applied a rule that contradicts the governing law set forth in this
Court's cases or confronts facts that are materially
indistinguishable from a Court decision and nevertheless arrives at
a different result.
Williams v.
Taylor, 529 U. S. 362, 405406.
Andrade's sentence implicates factors relevant in both
Rummel and
Solem. Because
Harmelin and
Solem specifically stated that they did not overrule
Rummel, it was not contrary to this Court's clearly
established law for the state court to turn to
Rummel in
deciding whether the sentence was grossly disproportionate. See
Harmelin, supra, at 998 (KENNEDY, J.). Also, the facts here
fall in between
Solem and
Rummel but are not
materially indistinguishable from either. Thus, the state court did
not confront materially indistinguishable facts yet arrive at a
different result. Second, under the "unreasonable application"
clause, a federal habeas court may grant the writ if the state
court identifies the correct governing legal principle but
unreasonably applies it to the facts of the prisoner's case.
Williams v.
Taylor, 529
65
u. S., at 413. The state court decision must be objectively
unreasonable, not just incorrect or erroneous.
Id., at 409,
410, 412. Here, the Ninth Circuit erred in defining "objectively
unreasonable" to mean "clear error." While habeas relief can be
based on an application of a governing legal principle to a set of
facts different from those of the case in which the principle was
announced, the governing legal principle here gives legislatures
broad discretion to fashion a sentence that fits within the scope
of the proportionality principle-the "precise contours" of which
are "unclear."
Harmelin, supra, at 998 (KENNEDY, J.). And it
was not objectively unreasonable for the state court to conclude
that these "contours" permitted an affirmance of Andrade's
sentence. Cf.,
e. g., Riggs v.
California, 525 U. S.
1114, 1115 (STEVENS, J., dissenting from denial of certiorari). Pp.
73-77.
270 F.3d
743, reversed.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG,
and BREYER, JJ., joined,
post, p. 77.
Douglas P. Danzig, Deputy Attorney General of California,
argued the cause for petitioner. With him on the briefs were
Bill Lockyer, Attorney General,
pro se, Robert R.
Anderson, Chief Assistant Attorney General,
Gary W
Schons, Senior Assistant Attorney General, and
Carl H.
Horst, Supervising Deputy Attorney General.
Erwin Chemerinsky argued the cause for respondent.
With him on the brief were Paul Hoffman, Jordan C. Budd, Steven
R. Shapiro, Mark D. Rosenbaum, Daniel P. Tokaji, and Alan L.
Schlosser.
*
* Kent S.
Scheidegger and
Charles L.
Hobson filed a brief for the Criminal Justice Legal Foundation
et al. as
amici curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the California Public Defenders Association by
Kenneth I.
Clayman; for Families to Amend California's Three Strikes et
al. by
Gerald F.
Uelmen; for the National Association
of Criminal Defense Lawyers by
Sheryl Gordon McCloud; and
for Donald Ray Hill by
Susan S.
Azad and
Kathryn
M. Davis.
Briefs of
amici curiae were filed for the California
District Attorneys Association by
Dennis L. Stout and
Grover D. Merritt; and for Michael P. Judge by
Albert
J. Menaster and
Alex Ricciardulli.
66
JUSTICE O'CONNOR delivered the opinion of the Court. This case
raises the issue whether the United States Court of Appeals for the
Ninth Circuit erred in ruling that the California Court of Appeal's
decision affirming Leandro Andrade's two consecutive terms of 25
years to life in prison for a "third strike" conviction is contrary
to, or an unreasonable application of, clearly established federal
law as determined by this Court within the meaning of 28 U. S. C. §
2254(d)(1).
I A
On November 4, 1995, Leandro Andrade stole five videotapes worth
$84.70 from a Kmart store in Ontario, California. Security
personnel detained Andrade as he was leaving the store. On November
18, 1995, Andrade entered a different Kmart store in Montclair,
California, and placed four videotapes worth $68.84 in the rear
waistband of his pants. Again, security guards apprehended Andrade
as he was exiting the premises. Police subsequently arrested
Andrade for these crimes.
These two incidents were not Andrade's first or only encounters
with law enforcement. According to the state probation officer's
presentence report, Andrade has been in and out of state and
federal prison since 1982. In January 1982, he was convicted of a
misdemeanor theft offense and was sentenced to 6 days in jail with
12 months' probation. Andrade was arrested again in November 1982
for multiple counts of first-degree residential burglary. He
pleaded guilty to at least three of those counts, and in April of
the following year he was sentenced to 120 months in prison. In
1988, Andrade was convicted in federal court of "[t]ransportation
of [m]arijuana," App. 24, and was sentenced to eight years in
federal prison. In 1990, he was convicted in state court for a
misdemeanor petty theft offense and was ordered to serve 180 days
in jail. In September 1990, Andrade was convicted again in federal
court for the same fel-
67
ony of "[t]ransportation of [m]arijuana,"
ibid., and was
sentenced to 2,191 days in federal prison. And in 1991, Andrade was
arrested for a state parole violation-escape from federal prison.
He was paroled from the state penitentiary system in 1993.
A state probation officer interviewed Andrade after his
arrest in this case. The presentence report notes:
"The defendant admitted committing the offense. The defendant
further stated he went into the K-Mart Store to steal videos. He
took four of them to sell so he could buy heroin. He has been a
heroin addict since 1977. He says when he gets out of jail or
prison he always does something stupid. He admits his addiction
controls his life and he steals for his habit." Id., at
25.
Because of his 1990 misdemeanor conviction, the State charged
Andrade in this case with two counts of petty theft with a prior
conviction, in violation of Cal. Penal Code Ann. § 666 (West Supp.
2002). Under California law, petty theft with a prior conviction is
a so-called "wobbler" offense because it is punishable either as a
misdemeanor or as a felony.
Ibid.; cf.
Ewing v.
California, ante, at 16-17 (plurality opinion). The decision
to prosecute petty theft with a prior conviction as a misdemeanor
or as a felony is in the discretion of the prosecutor. See
ante, at 17. The trial court also has discretion to reduce
the charge to a misdemeanor at the time of sentencing. See
People v.
Superior Court of Los Angeles Cty. ex rel.
Alvarez, 14 Cal. 4th 968, 979, 928 P. 2d 1171, 1177-1178
(1997); see also
Ewing v.
California, ante, at
17.
Under California's three strikes law, any felony can constitute
the third strike, and thus can subject a defendant to a term of 25
years to life in prison. See Cal. Penal Code Ann. § 667(e)(2)(A)
(West 1999); see also
Ewing v.
California, ante, at
16. In this case, the prosecutor decided to charge the two counts
of theft as felonies rather than misdemeanors. The trial court
denied Andrade's motion to reduce the of-
68
fenses to misdemeanors, both before the jury verdict and again
in state habeas proceedings.
A jury found Andrade guilty of two counts of petty theft with a
prior conviction. According to California law, a jury must also
find that a defendant has been convicted of at least two serious or
violent felonies that serve as qualifying offenses under the three
strikes regime. In this case, the jury made a special finding that
Andrade was convicted of three counts of first-degree residential
burglary. A conviction for first-degree residential burglary
qualifies as a serious or violent felony for the purposes of the
three strikes law. Cal. Penal Code Ann. §§ 667.5, 1192.7 (West
1999); see also
Ewing v.
California, ante, at 19. As
a consequence, each of Andrade's convictions for theft under Cal.
Penal Code Ann. § 666 (West Supp. 2002) triggered a separate
application of the three strikes law. Pursuant to California law,
the judge sentenced Andrade to two consecutive terms of 25 years to
life in prison. See §§ 667(c)(6), 667(e)(2)(B). The State stated at
oral argument that under the decision announced by the Supreme
Court of California in
People v.
Garcia, 20 Cal. 4th
490, 976 P. 2d 831 (1999)-a decision that postdates his conviction
and sentence-it remains "available" for Andrade to "file another
State habeas corpus petition" arguing that he should serve only one
term of 25 years to life in prison because "sentencing courts have
a right to dismiss strikes on a count-by-count basis." Tr. of Oral
Arg. 24.
B
On direct appeal in 1997, the California Court of Appeal
affirmed Andrade's sentence of two consecutive terms of 25 years to
life in prison. It rejected Andrade's claim that his sentence
violates the constitutional prohibition against cruel and unusual
punishment. The court stated that "the proportionality analysis" of
Solem v.
Helm, 463 U. S. 277 (1983), "is
questionable in light of"
Harmelin v.
Michigan,
501 U. S. 957
(1991). App. to Pet. for Cert. 76. The court then ap-
69
plied our decision in
Rummel v.
Estelle, 445 U. S. 263 (1980),
where we rejected the defendant's claim that a life sentence was
"'grossly disproportionate' to the three felonies that formed the
predicate for his sentence."
Id., at 265. The California
Court of Appeal then examined Andrade's claim in light of the facts
in
Rummel: "Comparing [Andrade's] crimes and criminal
history with that of defendant Rummel, we cannot say the sentence
of 50 years to life at issue in this case is disproportionate and
constitutes cruel and unusual punishment under the United States
Constitution." App. to Pet. for Cert. 76-77.
After the Supreme Court of California denied discretionary
review, Andrade filed a petition for a writ of habeas corpus in
Federal District Court. The District Court denied his petition. The
Ninth Circuit granted Andrade a certificate of appealability as to
his claim that his sentence violated the Eighth Amendment, and
subsequently reversed the judgment of the District Court.
270 F.3d
743 (2001).
The Ninth Circuit first noted that it was reviewing Andrade's
petition under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 110 Stat. 1214. Applying its own precedent, the Ninth
Circuit held that an unreasonable application of clearly
established federal law occurs "when our independent review of the
legal question 'leaves us with a "firm conviction" that one answer,
the one rejected by the [state] court, was correct and the other,
the application of the federal law that the [state] court adopted,
was erroneous-in other words that clear error occurred.''' 270 F.
3d, at 753 (alteration in original) (quoting
Van Tran v.
Lindsey, 212
The court then reviewed our three most recent major precedents
in this
area-Rummel v.
Estelle, supra, Solem v.
Helm, supra, and
Harmelin v.
Michigan, supra.
The Ninth Circuit "follow[ed] the test prescribed by Justice
Kennedy in
Harmelin," concluding that "both
Rummel
and
Solem remain good law and are instructive in
Harmelin's applica-
70
tion." 270 F. 3d, at 766. It then noted that the California
Court of Appeal compared the facts of Andrade's case to the facts
of
Rummel, but not
Solem. 270 F. 3d, at 766. The
Ninth Circuit concluded that it should grant the writ of habeas
corpus because the state court's "disregard for
Solem
results in an unreasonable application of clearly established
Supreme Court law," and "is irreconcilable with ...
Solem,"
thus constituting "clear error."
Id., at 766-767.
Judge Sneed dissented in relevant part. He wrote that "[t]he
sentence imposed in this case is not one of the 'exceedingly rare'
terms of imprisonment prohibited by the Eighth Amendment's
proscription against cruel and unusual punishment."
Id., at
767 (quoting
Harmelin v.
Michigan, supra, at 1001
(KENNEDY, J., concurring in part and concurring in judgment)).
Under his view, the state court decision upholding Andrade's
sentence was thus "not an unreasonable application of clearly
established federal law." 270 F. 3d, at 772. We granted certiorari,
535 U. S. 969 (2002), and now reverse.
II
Andrade's argument in this Court is that two consecutive terms
of 25 years to life for stealing approximately $150 in videotapes
is grossly disproportionate in violation of the Eighth Amendment.
Andrade similarly maintains that the state court decision affirming
his sentence is "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States." 28 U. S. C. §
2254(d)(1).
AEDPA circumscribes a federal habeas court's review of
a state court decision. Section 2254 provides:
"(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim-
71
"(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States."
The Ninth Circuit requires federal habeas courts to review the
state court decision
de novo before applying the AEDPA
standard of review. See,
e. g., Van Tran v.
Lindsey,
supra, at 1154-1155;
Clark v.
Murphy, 317 F.3d
1038, 1044, n. 3
(CA9 2003). We disagree with this
approach. AEDPA does not require a federal habeas court to adopt
anyone methodology in deciding the only question that matters under
§ 2254(d)(1)-whether a state court decision is contrary to, or
involved an unreasonable application of, clearly established
federal law. See
Weeks v.
Angelone, 528 U. S. 225 (2000). In
this case, we do not reach the question whether the state court
erred and instead focus solely on whether § 2254(d) forecloses
habeas relief on Andrade's Eighth Amendment claim.
III A
As a threshold matter here, we first decide what constitutes
"clearly established Federal law, as determined by the Supreme
Court of the United States." § 2254(d)(1). Andrade relies upon a
series of precedents from this Court
Rummel v.
Estelle,
supra, Solem v.
Helm, 463 U. S. 277 (1983), and
Harmelin v.
Michigan, 501 U. S. 957 (1991)-that
he claims clearly establish a principle that his sentence is so
grossly disproportionate that it violates the Eighth Amendment.
Section 2254(d)(1)'s "clearly established" phrase "refers to the
holdings, as opposed to the dicta, of this Court's decisions as of
the time of the relevant state-court decision."
Williams v.
Taylor, 529 U.
S. 362, 412 (2000). In other words, "clearly established
Federal law" under § 2254(d)(1) is the governing legal principle or
principles set forth by the Supreme Court at the time the state
72
court renders its decision. See
id., at 405, 413;
Bell v.
Cone, 535 U. S. 685, 698
(2002). In most situations, the task of determining what we have
clearly established will be straightforward. The difficulty with
Andrade's position, however, is that our precedents in this area
have not been a model of clarity. See
Harmelin v.
Michigan, 501 U. S., at 965 (opinion of SCALIA, J.);
id., at 996, 998 (KENNEDY, J., concurring in part and
concurring in judgment). Indeed, in determining whether a
particular sentence for a term of years can violate the Eighth
Amendment, we have not established a clear or consistent path for
courts to follow. See
Ewing v.
California, ante, at
20-23.
B
Through this thicket of Eighth Amendment jurisprudence, one
governing legal principle emerges as "clearly established" under §
2254(d)(1): A gross disproportionality principle is applicable to
sentences for terms of years.
Our cases exhibit a lack of clarity regarding what factors may
indicate gross disproportionality. In
Solem (the case upon
which Andrade relies most heavily), we stated: "It is clear that a
25-year sentence generally is more severe than a 15-year sentence,
but in most cases it would be difficult to decide that the former
violates the Eighth Amendment while the latter does not." 463 U.
S., at 294 (footnote omitted). And in
Harmelin, both JUSTICE
KENNEDY and JUSTICE SCALIA repeatedly emphasized this lack of
clarity: that
"Solem was scarcely the expression of clear
... constitutional law," 501 U. S., at 965 (opinion of SCALIA, J.),
that in "adher[ing] to the narrow proportionality principle ... our
proportionality decisions have not been clear or consistent in all
respects,"
id., at 996 (KENNEDY, J., concurring in part and
concurring in judgment), that "we lack clear objective standards to
distinguish between sentences for different terms of years,"
id., at 1001 (KENNEDY, J., concurring in part and concurring
in judgment), and that the "precise contours" of the
73
proportionality principle "are unclear,"
id., at 998
(KENNEDY, J., concurring in part and concurring in judgment).
Thus, in this case, the only relevant clearly established law
amenable to the "contrary to" or "unreasonable application of"
framework is the gross disproportionality principle, the precise
contours of which are unclear, applicable only in the "exceedingly
rare" and "extreme" case.
Id., at 1001 (KENNEDY, J.,
concurring in part and concurring in judgment) (internal quotation
marks omitted); see also
Solem v.
Helm, supra, at
290;
Rummel v.
Estelle, 445 U. S., at 272.
IV
The final question is whether the California Court of Appeal's
decision affirming Andrade's sentence is "contrary to, or involved
an unreasonable application of," this clearly established gross
disproportionality principle.
First, a state court decision is "contrary to our clearly
established precedent if the state court applies a rule that
contradicts the governing law set forth in our cases" or "if the
state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless
arrives at a result different from our precedent."
Williams
v.
Taylor, supra, at 405-406; see also
Bell v.
Cone, supra, at 694. In terms of length of sentence and
availability of parole, severity of the underlying offense, and the
impact of recidivism, Andrade's sentence implicates factors
relevant in both
Rummel and
Solem. Because
Harmelin and
Solem specifically stated that they did
not overrule
Rummel, it was not contrary to our clearly
established law for the California Court of Appeal to turn to
Rummel in deciding whether a sentence is grossly
disproportionate. See
Harmelin, supra, at 998 (KENNEDY, J.,
concurring in part and concurring in judgment);
Solem,
supra, at 288, n. 13, 303-304, n. 32. Indeed,
Harmelin
allows a state court to reasonably rely on
Rummel in
determining whether a sentence is grossly disproportionate. The
California Court of Appeal's decision
74
was therefore not "contrary to" the governing legal principles
set forth in our cases.
Andrade's sentence also was not materially indistinguishable
from the facts in So
lem. The facts here fall in between the
facts in
Rummel and the facts in
Solem. Solem
involved a sentence of life in prison without the possibility of
parole. 463 U. S., at 279. The defendant in
Rummel was
sentenced to life in prison with the possibility of parole. 445 U.
S., at 267. Here, Andrade retains the possibility of parole.
Solem acknowledged that
Rummel would apply in a
"similar factual situation." 463 U. S., at 304, n. 32. And while
this case resembles to some degree both
Rummel and
Solem, it is not materially indistinguishable from either.
Cf.
Ewing v.
California, ante, at 40 (BREYER, J.,
dissenting) (recognizing a "twilight zone between
Solem and
Rummel"). Consequently, the state court did not "confron[t]
a set of facts that are materially indistinguishable from a
decision of this Court and nevertheless arriv[e] at a result
different from our precedent."
Williams v.
Taylor,
529 U. S., at 406.1
IJUSTICE SOUTER argues that the possibility of Andrade's
receiving parole in 50 years makes this case similar to the facts
in
Solem v.
Helm, 463 U. S. 277 (1983).
Post,
at 78-79 (dissenting opinion). Andrade's sentence, however, is also
similar to the facts in
Rummel v.
Estelle, 445 U. S. 263 (1980), a
case that is also "controlling."
Post, at 78. Given the lack
of clarity of our precedents in
Solem, Rummel, and
Harmelin v.
Michigan, 501 U. S. 957 (1991), we
cannot say that the state court's affirmance of two sentences of 25
years to life in prison was contrary to our clearly established
precedent. And to the extent that JUSTICE SOUTER is arguing that
the similarity of
Solem to this case entitles Andrade to
relief under the unreasonable application prong of § 2254(d), we
reject his analysis for the reasons given
infra, at 76-77.
Moreover, it is not true that Andrade's "sentence can only be
understood as punishment for the total amount he stole."
Post, at 78. To the contrary, California law specifically
provides that
each violation of Cal. Penal Code Ann. § 666
(West Supp. 2002) triggers a separate application of the three
strikes law, if the different felony counts are "not arising from
the same set of operative facts." § 667(c)(6) (West 1999); see also
§ 667(e)(2)(B). Here, Andrade was sentenced to two consecutive
terms under California law precisely because the two thefts
75
Second, "[u]nder the 'unreasonable application' clause, a
federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court's
decisions but unreasonably applies that principle to the facts of
the prisoner's case."
Id., at 413. The "unreasonable
application" clause requires the state court decision to be more
than incorrect or erroneous.
Id., at 410, 412. The state
court's application of clearly established law must be objectively
unreasonable.
Id., at 409.
The Ninth Circuit made an initial error in its "unreasonable
application" analysis. In
Van Tran v.
Lindsey, 212 F.
3d, at 1152-1154, the Ninth Circuit defined "objectively
unreasonable" to mean "clear error." These two standards, however,
are not the same. The gloss of clear error fails to give proper
deference to state courts by conflating error (even clear error)
with unreasonableness. See
Williams v.
Taylor, supra,
at 410;
Bell v.
Cone, 535 U. S., at 699.
It is not enough that a federal habeas court, in its
"independent review of the legal question," is left with a "'firm
conviction'" that the state court was "'erroneous.'" 270 F. 3d, at
753 (quoting
Van Tran v.
Lindsey, supra, at
1153-1154). We have held precisely the opposite: "Under §
2254(d)(1)'s 'unreasonable application' clause, then, a federal
habeas court may not issue the writ simply because that
of two different Kmart stores occurring two weeks apart were two
distinct crimes.
JUSTICE SOUTER, relying on
Robinson v.
California,
370 U. S. 660
(1962), also argues that in this case, it is "unrealistic" to think
that a sentence of 50 years to life for Andrade is not equivalent
to life in prison without parole.
Post, at 79. This
argument, however, misses the point. Based on our precedents, the
state court decision was not contrary to, or an unreasonable
application of, our clearly established law. Moreover, JUSTICE
SOUTER'S position would treat a sentence of life without parole for
the 77-year-old person convicted of murder as equivalent to a
sentence of life with the possibility of parole in 10 years for the
same person convicted of the same crime. Two different sentences do
not become materially indistinguishable based solely upon the age
of the persons sentenced.
76
court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly."
Williams v.
Taylor, 529
U. S., at 411. Rather, that application must be objectively
unreasonable.
Id., at 409;
Bell v.
Cone,
supra, at 699;
Woodford v.
Visciotti, 537 U. S. 19, 27 (2002)
(per curiam).
Section 2254(d)(1) permits a federal court to grant habeas
relief based on the application of a governing legal principle to a
set of facts different from those of the case in which the
principle was announced. See,
e. g., Williams v.
Taylor,
supra, at 407 (noting that it is "an unreasonable application
of this Court's precedent if the state court identifies the correct
governing legal rule from this Court's cases but unreasonably
applies it to the facts of the particular state prisoner's case").
Here, however, the governing legal principle gives legislatures
broad discretion to fashion a sentence that fits within the scope
of the proportionality principle-the "precise contours" of which
"are unclear."
Harmelin v.
Michigan, 501 U. S., at
998 (KENNEDY, J., concurring in part and concurring in judgment).
And it was not objectively unreasonable for the California Court of
Appeal to conclude that these "contours" permitted an affirmance of
Andrade's sentence.
Indeed, since
Harmelin, several Members of this Court
have expressed "uncertainty" regarding the application of the
proportionality principle to the California three strikes law.
Riggs v.
California, 525 U. S. 1114, 1115 (1999)
(STEVENS, J., joined by SOUTER and GINSBURG, JJ., respecting denial
of certiorari) ("[T]here is some uncertainty about how our cases
dealing with the punishment of recidivists should apply"); see also
id., at 1116 ("It is thus unclear how, if at all, a
defendant's criminal record beyond the requisite two prior
'strikes' ... affects the constitutionality of his sentence"); cf.
Durden v.
California, 531 U. S. 1184 (2001) (SOUTER,
J., joined by BREYER, J., dissenting from denial of certiorari)
(arguing that the Court should hear the three strikes gross
77
disproportionality issue on direct review because of the
"potential for disagreement over application of" AEDPA).2
The gross disproportionality principle reserves a constitutional
violation for only the extraordinary case. In applying this
principle for § 2254(d)(1) purposes, it was not an unreasonable
application of our clearly established law for the California Court
of Appeal to affirm Andrade's sentence of two consecutive terms of
25 years to life in prison.
V
The judgment of the United States Court of Appeals for the Ninth
Circuit, accordingly, is reversed.
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
The application of the Eighth Amendment prohibition against
cruel and unusual punishment to terms of years is articulated in
the "clearly established" principle acknowledged by the Court: a
sentence grossly disproportionate to the offense for which it is
imposed is unconstitutional. See
ante, at 72-73;
Harmelin v.
Michigan, 501 U. S. 957 (1991);
Solem v.
Helm, 463 U. S. 277 (1983);
Rummel v.
Estelle, 445 U. S. 263 (1980). For the
reasons set forth in JUSTICE BREYER'S dissent in
Ewing v.
California, ante, at 35, which I joined, Andrade's sentence
cannot survive Eighth Amendment review. His criminal history is
less grave than Ewing's, and yet he received a prison term twice as
long for a less serious triggering offense. To be sure, this is a
habeas case and a prohibition couched in terms as general as
gross
2JU8TICE SOUTER would hold that Andrade's sentence also violates
the unreasonable application prong of § 2254(d)(1).
Post, at
79-82. His reasons, however, do not change the "uncertainty" of the
scope of the proportionality principle. We cannot say that the
state court decision was an unreasonable application of this
principle.
78
disproportion necessarily leaves state courts with much leeway
under the statutory criterion that conditions federal relief upon
finding that a state court unreasonably applied clear law, see 28
U. s. C. § 2254(d). This case nonetheless presents two independent
reasons for holding that the disproportionality review by the state
court was not only erroneous but unreasonable, entitling Andrade to
relief. I respectfully dissent accordingly.
The first reason is the holding in
Solem, which happens
to be our most recent effort at proportionality review of
recidivist sentencing, the authority of which was not left in doubt
by
Harmelin, see 501 U. S., at 998. Although
Solem is
important for its instructions about applying objective
proportionality analysis, see 463 U. S., at 290-292, the case is
controlling here because it established a benchmark in applying the
general principle. We specifically held that a sentence of life
imprisonment without parole for uttering a $100 "no account" check
was disproportionate to the crime, even though the defendant had
committed six prior nonviolent felonies. In explaining our
proportionality review, we contrasted the result with
Rummel's on the ground that the life sentence there had
included parole eligibility after 12 years,
Solem, 463 U.
S., at 297.
The facts here are on all fours with those of
Solem and
point to the same result.
Id., at 279-281. Andrade, like the
defendant in
Solem, was a repeat offender who committed
theft of fairly trifling value, some $150, and their criminal
records are comparable, including burglary (though Andrade's were
residential), with no violent crimes or crimes against the person.
The respective sentences, too, are strikingly alike. Although
Andrade's petty thefts occurred on two separate occasions, his
sentence can only be understood as punishment for the total amount
he stole. The two thefts were separated by only two weeks; they
involved the same victim; they apparently constituted parts of a
single, continuing effort to finance drug sales; their seriousness
is measured
79
by the dollar value of the things taken; and the government
charged both thefts in a single indictment. Cf. United States
Sentencing Commission, Guidelines Manual § 3D1.2 (Nov. 2002)
(grouping temporally separated counts as one offense for sentencing
purposes). The state court accordingly spoke of his punishment
collectively as well, carrying a 50year minimum before parole
eligibility, see App. to Pet. for Cert. 77 ("[WJe cannot say the
sentence of 50 years to life at issue in this case is
disproportionate"), and because Andrade was 37 years old when
sentenced, the substantial 50-year period amounts to life without
parole.
Solem, supra, at 287 (when considering whether a
punishment is cruel or unusual "'the question cannot be considered
in the abstract'" (quoting
Robinson v.
California,
370 U. S. 660,
667 (1962))); c:t:
Rummel, supra, at 280-281 (defendant's eligibility for
parole in 12 years informs a proper assessment of his cruel and
unusual punishment claim). The results under the Eighth Amendment
should therefore be the same in each case. The only ways to reach a
different conclusion are to reject the practical equivalence of a
life sentence without parole and one with parole eligibility at 87,
see
ante, at 74 ("Andrade retains the possibility of
parole"), or to discount the continuing authority of
Solem's
example, as the California court did, see App. to Pet. for Cert. 76
("[T]he current validity of the Solem proportionality analysis is
questionable"). The former is unrealistic; an 87-year-old man
released after 50 years behind bars will have no real life left, if
he survives to be released at all. And the latter, disparaging
Solem as a point of reference on Eighth Amendment analysis,
is wrong as a matter of law.
The second reason that relief is required even under the §
2254(d) unreasonable application standard rests on the alternative
way of looking at Andrade's 50-year sentence as two separate
25-year applications of the three-strikes law, and construing the
challenge here as going to the second, consecutive 25-year minimum
term triggered by a petty
80
theft. 1 To understand why it is revealing to look at the
sentence this way, it helps to recall the basic difficulty inherent
in proportionality review. We require the comparison of offense and
penalty to disclose a truly gross disproportionality before the
constitutional limit is passed, in large part because we believe
that legislatures are institutionally equipped with better judgment
than courts in deciding what penalty is merited by particular
behavior.
Solem, supra, at 290. In this case, however, a
court is substantially aided in its reviewing function by two
determinations made by the State itself.
The first is the State's adoption of a particular penalogical
theory as its principal reason for shutting a three-strikes
defendant away for at least 25 years. Although the State alludes in
passing to retribution or deterrence (see Brief for Petitioner 16,
24; Reply Brief for Petitioner 10), its only serious justification
for the 25-year minimum treats the sentence as a way to
incapacitate a given defendant from further crime; the underlying
theory is the need to protect the public from a danger demonstrated
by the prior record of violent and serious crime. See Brief for
Petitioner 17 ("significant danger to society such that [defendant]
must be imprisoned for no less than twenty-five years to life");
id., at 21 ("statute carefully tailored to address ...
defendants that pose the greatest danger");
id., at 23
("isolating such a defendant for a substantial period of time");
Reply Brief for Petitioner 11 ("If Andrade's reasoning were
accepted, however, California would be precluded from
incapacitating him"). See also
Rummel, 445 U. S., at 284
("purpose of a recidivist
1 This point is independent of the fact, recognized by the
Court,
ante, at 68, that it remains open to Andrade to
appeal his sentence under
People v.
Garcia, 20 Cal.
4th 490, 976 P. 2d 831 (1999) (holding trial court may dismiss
strikes on a count-by-count basis; such discretion is consistent
with mandatory consecutive sentencing provision).
81
statute ... [is] to segregate").2 The State, in other words has
not chosen 25 to life because of the inherent moral or social
reprehensibility of the triggering offense in isolation; the
triggering offense is treated so seriously, rather, because of its
confirmation of the defendant's danger to society and the need to
counter his threat with incapacitation. As to the length of
incapacitation, the State has made a second helpful determination,
that the public risk or danger posed by someone with the specified
predicate record is generally addressed by incapacitation for 25
years before parole eligibility. Cal. Penal Code Ann. §
667(e)(2)(A)(ii) (West 1999). The three-strikes law, in sum,
responds to a condition of the defendant shown by his prior felony
record, his danger to society, and it reflects a judgment that 25
years of incapacitation prior to parole eligibility is appropriate
when a defendant exhibiting such a condition commits another
felony.
Whether or not one accepts the State's choice of penalogical
policy as constitutionally sound, that policy cannot rea-
2 Implicit in the distinction between future dangerousness and
repunishment for prior crimes is the notion that the triggering
offense must, within some degree, be substantial enough to bear the
weight of the sentence it elicits. As triggering offenses become
increasingly minor and recidivist sentences grow, the sentences
advance toward double jeopardy violations. When defendants are
parking violators or slow readers of borrowed library books, there
is not much room for belief, even in light of a past criminal
record, that the State is permanently incapacitating the defendant
because of future dangerousness rather than resentencing for past
offenses.
That said, I do not question the legitimacy of repeatedly
sentencing a defendant in light of his criminal record: the Federal
Sentencing Guidelines provide a prime example of how a sentencing
scheme may take into account a defendant's criminal history without
resentencing a defendant for past convictions,
Witte v.
United States, 515 U. S. 389, 403 (1995)
(the triggering offense determines the range of possible sentences,
and the past criminal record affects an enhancement of that
sentence). The point is merely that the triggering offense must
reasonably support the weight of even the harshest possible
sentences.
82
sonably justify the imposition of a consecutive 25-year minimum
for a second minor felony committed soon after the first triggering
offense. Andrade did not somehow become twice as dangerous to
society when he stole the second handful of videotapes; his
dangerousness may justify treating one minor felony as serious and
warranting long incapacitation, but a second such felony does not
disclose greater danger warranting substantially longer
incapacitation. Since the defendant's condition has not changed
between the two closely related thefts, the incapacitation penalty
is not open to the simple arithmetic of multiplying the punishment
by two, without resulting in gross disproportion even under the
State's chosen benchmark. Far from attempting a novel penal theory
to justify doubling the sentence, the California Court of Appeal
offered no comment at all as to the particular penal theory
supporting such a punishment. App. to Pet. for Cert. 76-79. Perhaps
even more tellingly, no one could seriously argue that the second
theft of videotapes provided any basis to think that Andrade would
be so dangerous after 25 years, the date on which the consecutive
sentence would begin to run, as to require at least 25 years more.
I know of no jurisdiction that would add 25 years of imprisonment
simply to reflect the fact that the two temporally related thefts
took place on two separate occasions, and I am not surprised that
California has found no such case, not even under its three-strikes
law. Tr. of Oral Arg. 52 (State's counsel acknowledging "I have no
reference to any 50-yearto-life sentences based on two
convictions"). In sum, the argument that repeating a trivial crime
justifies doubling a 25-year minimum incapacitation sentence based
on a threat to the public does not raise a seriously debatable
point on which judgments might reasonably differ. The argument is
irrational, and the state court's acceptance of it in response to a
facially gross disproportion between triggering offense and penalty
was unreasonable within the meaning of § 2254(d).
83
This is the rare sentence of demonstrable gross
disproportionality, as the California Legislature may well have
recognized when it specifically provided that a prosecutor may move
to dismiss or strike a prior felony conviction "in the furtherance
of justice." Cal. Penal Code Ann. § 667(f)(2) (West 1999). In this
case, the statutory safeguard failed, and the state court was left
to ensure that the Eighth Amendment prohibition on grossly
disproportionate sentences was met. If Andrade's sentence is not
grossly disproportionate, the principle has no meaning. The
California court's holding was an unreasonable application of
clearly established precedent.
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