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In this Court's previous applications of the "clearly established" portion of 28 U. S. C. §2254(d), identification of the controlling precedent was straightforward. In Williams v. Taylor, 529 U. S. 362 (2000), the landmark decision ofStrickland v. Washington, 466 U. S. 668 (1984) was easily identifiable as the relevant, clearly established Supreme Court precedent. See Williams, supra, at 390-391; id., at 413-414 (O'Connor, J., concurring). In Penry v. Johnson, 532 U. S. 782 (2001), analysis of Penry's Fifth Amendment claim centered on whether Estelle v. Smith, 451 U. S. 454 (1981) could be distinguished, see Penry, supra, at 793-795, while his Eighth Amendment claim centered on Texas' compliance with the first Penry case, Penry v. Lynaugh, 492 U. S. 302 (1989). See Penry v. Johnson, 532 U. S., at 786.
This case raises difficult issues regarding what is clearly established under §2254(d). An examination of this Court's cases governing the proportionality of prison sentences under the Eighth Amendment uncovers a body of law that is considerably less settled than those that confronted the Williams and Penry courts. Under these difficult circumstances, the California Court of Appeal cannot be said to be contrary to the clearly established Supreme Court precedent that is in this field.
An understanding of the unsettled body of law governing Eighth Amendment attacks on the proportionality of prison sentences requires a brief survey of the cases in this field. Some assert that precedent for an Eighth Amendment proportionality requirement traces back to Weems v. United States, 217 U. S. 349 (1910). See Harmelin v. Michigan, 501 U. S. 957, 1012 (1991) (White, J., dissenting). Although historically interesting, Weems' unusual set of facts seriously limits its relevance to modern prison sentences. The relevant precedent is much more recent, a quartet of cases beginning with Rummel v. Estelle, 445 U. S. 263 (1980).
Rummel addressed a life sentence for a comparatively minor theft under Texas' recidivist scheme. See id., at 264-265. In upholding the sentence, this Court established that while prison sentences might be subject to Eighth Amendment proportionality review, the standard of review was very deferential. It noted that "[t]his Court has on occasion stated that the Eighth Amendment prohibits its imposition of a sentence that is grossly disproportionate to the severity of the crime." Id., at 271. The largest source of such precedent came from capital cases, which were readily distinguished "[b]ecause a sentence of death differs in kind from any sentence of imprisonment . . . ." Noncapital cases raising successful proportionality claims were "exceedingly rare." Ibid. Weems, the most notable example, was limited to its "peculiar facts," including the harsh and alien cadena temporal. See id., at 274. The Rummel Court concluded that "one could argue, without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies . . . the length of the sentence actually imposed is purely a matter of legislative prerogative." Ibid.
This Court recognized a narrow exception to its deferential rule. "This is not to say that a proportionality principle does not come into play in the extreme example mentioned by the dissent, post, at 288, if a legislature made overtime parking a felony punishable by life imprisonment." Id., at 274, n. 11. It addressed proportionality in such narrow terms because "a more extensive intrusion into the basic line-drawing process that is pre-eminently the province of the legislature when it makes an act criminal would be difficult to square with the view expressed in Coker [v.Georgia, 433 U. S. 584 (1977)] that the Court's Eighth Amendment judgments should neither be nor appear to be merely the subjective views of individual Justices." Id., at 275.
Rummel was convicted of obtaining $120.75 by false pretenses, a felony. See id., at 266. He also had prior felony convictions for $80 in credit card fraud and forging a $28.36 check. See id., at 265. Under Texas law the two prior felony convictions elevated Rummel's sentence to life. See id., at 264. The Court dismissed Rummel's attempt to use the small amounts stolen and his lack of violence as objective examples of disproportionality. It held that drawing such distinctions "are indeed 'subjective' and therefore properly within the province of legislatures, not courts." Id., at 275-276. Other attempts by Rummel to distinguish his case from this Court's nearly total deference to sentencing statutes were similarly unsuccessful. See id., at 280-282. Therefore, Texas' mandatory life sentence for Rummel's minor theft was upheld. See id., at 285.
Hutto v. Davis, 454 U. S. 370 (1982) (per curiam) reinforced Rummel's deference to the legislative prerogative to define crimes and set punishments. The Court addressed a Fourth Circuit decision holding that a 40-year sentence for possession of less than nine ounces of marijuana was cruel and unusual punishment. See id., at 371. The Fourth Circuit was reversed in unusually harsh language. "[T]he Court of Appeals sanctioned an intrusion into the basic linedrawing process that is 'properly within the province of legislatures, not courts.' More importantly, however, the Court of Appeals could be viewed as having ignored, consciously or unconsciously, the hierarchy of the federal court system created by the Constitution and Congress. . . . But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be." Id., at 374-375 (citation omitted) (quoting Rummel, 445 U. S., at 275-276).
In other words, this Court meant what it said in Rummel. A proportionality challenge to a prison sentence was next to impossible. Barring the extreme example of life for overtime parking, see Rummel, 445 U. S., at 274, n. 11, prison sentences were likely to survive an Eighth Amendment attack.
Solem v. Helm, 463 U. S. 277 (1983) addressed whether life without the possibility of parole was an unconstitutionally disproportionate punishment for Helm's seventh nonviolent felony conviction. See id., at 279. Helm's prior felony convictions were three third-degree burglaries, theft by false pretenses, grand larceny, and third-offense driving under the influence. See id., at 279-280. His current conviction was for "uttering a 'no account' check for $100." Id., at 281. The Solem Court began its analysis with the history of the prohibition against cruel and unusual punishment. It found that a proportionality requirement was "deeply rooted and frequently repeated in common-law jurisprudence." Id., at 284. Proportionality had been recognized "in this Court for almost a century." Id., at 286. Therefore it rejected the state's contention that proportionality did not apply to felony prison sentences. Id., at 289. While courts must be deferential to legislative sentencing policies, "no penalty is per se constitutional." Id., at 290.
Solem took an objective approach to proportionality review. It applied a three-part test, examining "i) the gravity of the offense and the harshness of the penalty; ii) the sentences imposed on other criminals in the same jurisdiction; and iii) the sentences imposed for the commission of the same crime in other jurisdictions." Id., at 292. Applying this test the Solem Court found that Helm's sentence violated the Eighth Amendment's proportionality requirement. See id., at 303.
Its holding that this punishment violated the Eighth Amendment is difficult to square with Rummel and Hutto. It is true that the facts of Solem do differ from Rummel. Solem involved a potentially harsher punishment, as the life sentence in Rummel was mitigated by the possibility of parole within 12 years. See id., at 297. Yet this would seem to have made little difference to the Rummel Court. The Rummel decision accorded nearly complete deference to prison sentences. See, ante, at 8. While the Rummel Court did note the "however slim" possibility of parole in 12 years, see 445 U. S., at 280-281, its holding did not turn on this point. Rummel's discussion of the possibility of parole was a small part of a larger analysis dealing with Rummel's claim that no state would have punished him as severely as Texas. See id., at 279-281. The fact that the possibility of parole ameliorated Rummel's sentence did not support the argument's dismissal. Instead, it showed that Rummel's claim involved making subtle distinctions between gradations of crime and punishment that courts must not make. "We offer these additional considerations not as inherent flaws in Rummel's suggested interjurisdictional analysis but as illustrations of the complexities confronting any court that would attempt such a comparison." Id., at 281.
Solem also contradicted the spirit of Rummel. Instead of Rummel's declaration that prison sentences could be attacked only in the most extreme cases, the Solem Court warned that all sentences were subject to scrutiny. Thus, even "a single day in prison may be unconstitutional in some circumstances." Solem, 463 U. S., at 290. Solem's three-part test is also contrary to Rummel. Solem's first part, comparing the gravity of the offense to the severity of the penalty, see id., at 290-291, was calculated differently in Rummel. The only sentence it explicitly recognized as disproportionate was the extreme circumstance of life for a parking offense. This conflict was made more prominent by Solem's application of this standard. The Court minimized the gravity of Helm's offenses because they were not violent and involved small sums, an analysis that the Rummel Court flatly rejected as inherently subjective. CompareSolem, supra, at 296-297, with Rummel, 445 U. S., at 275-276.
The second Solem factor, comparison to sentences imposed on other criminals in the jurisdiction, see 463 U. S. at 291, was dismissed by Rummel in a footnote. See 445 U. S., at 282, n. 27. Rummel also thoroughly dismissed Solem's third factor, comparing the sentences to sentences for similarly situated criminals in other jurisdictions. CompareSolem, supra, at 291, with Rummel, supra, at 281-282. "Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State." Rummel, supra, at 282.
The two decisions even disagreed on the relevance of sentencing philosophy to proportionality claims. While theSolem Court attacked the North Dakota sentence for precluding any efforts to rehabilitate Helm, see 463 U. S., at 297, n. 22, the Rummel Court refused to adopt any theory of sentencing. See 445 U. S., at 283-284.
In spite of this conflict, Solem disclaimed any intent to overrule Rummel. See 463 U. S., at 303, n. 32. The SolemCourt showed at least some affinity for Rummel's analysis by reiterating that successful proportionality challenges to noncapital sentences should be " 'exceedingly rare.' " Id., at 289 (quoting Rummel, 445 U. S., at 272). Similarly, theSolem Court also denied that it was creating any general authority for appellate review of sentences. Courts should still accord "substantial deference" to "legislatures and sentencing courts . . . ." Solem, 463 U. S., at 290, n. 16. It asserted that it merely supplied standards for reviewing Eighth Amendment proportionality claims that were absent from Rummel. See id., at 304, n. 32. Since Helm's crimes were nonviolent and minor, and his sentence was comparatively harsh to similarly situated criminals in North Dakota and other states, his sentence was struck down for being "significantly disproportionate to his crime . . . ." Id., at 303.
The tensions underlying Eighth Amendment proportionality review of prison sentences exploded into full view inHarmelin v. Michigan, 501 U. S. 957 (1991). Harmelin was sentenced to life without the possibility of parole for possessing 672 grams of cocaine. See id., at 961 (opinion of Scalia, J.). Except for rejecting an individualized sentencing requirement for noncapital sentences and upholding Harmelin's sentence, see id., at 996 (majority), there was no majority opinion in this 5-4 decision.
Justice Scalia, joined by the Chief Justice, rejected Eighth Amendment proportionality review except in capital cases. See id., at 994. The opinion denounced Solem as simply wrong and "scarcely the expression of clear and well accepted constitutional law." See id., at 965. Rummel and Hutto were cited approvingly in Justice Scalia's opinion although both cases accepted the possibility of a noncapital proportionality guarantee. See id., at 962-964. Harmelin's sentence was necessarily lawful under this approach. See id., at 996.
Justice Kennedy, joined by Justice O'Connor and Justice Souter, agreed that Harmelin's sentence should be upheld, but that stare decisis counseled against rejecting "the narrow proportionality principle that has existed in our Eighth Amendment jurisprudence for 80 years." Id., at 996 (opinion of Kennedy, J.). However, this opinion recognized that it was upholding a fractured line of authority. "Although our proportionality decisions have not been clear or consistent in all respects, they can be reconciled, and they require us to uphold petitioner's sentence." Id., at 996-997. After briefly surveying the Eighth Amendment proportionality cases since Weems, see id., at 997-998, Justice Kennedy found fault with the current state of proportionality analysis in noncapital cases. "Though our decisions recognize a proportionality principle, its precise contours are unclear. This is so in part because we have applied the rule in few cases and even then to sentences of different types." Id., at 998. Thus Solem "appeared to apply a different analysis than in Rummel and Davis" even though it purported to uphold those decisions. Ibid. What could be harvested from these conflicting authorities was "some common principles that give content to the uses and limits of proportionality review." Ibid.
These principles are very general, and lean more towards Rummel than Solem. First, "the fixing of prison terms for specific crimes involves a substantive peneological judgment that as a general matter is 'properly within the province of legislatures, not courts.' " Ibid. (quoting Rummel, 445 U. S., at 275-276). Determining the proper punishment involves difficult policy questions containing strong political and moral elements. See ibid. Appellate courts should not make such distinctions. This was the central theme of Rummel, that the appellate courts should not second-guess these policy decisions. See Rummel, 445 U. S., at 279.
"The second principle is that the Eighth Amendment does not mandate adoption of any peneological theory." Harmelin, 501 U. S., at 999 (opinion of Kennedy, J.). Once again, this is closest to Rummel's reasoning. As noted earlier, while the Rummel decision deferred to the peneological theories supporting Texas' recidivism statute, theSolem Court criticized the life without possibility of parole sentence as foreclosing any attempts at Helm's rehabilitation. See ante, at 10. For the third principle, that "marked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure," Justice Kennedy's opinion cited Solem. See ibid. This principle is also closer to Rummel than Solem. TheRummel Court strongly criticized interjurisdiction comparison of sentences, see Rummel, 445 U. S., at 281; Harmelin,supra, at 999-1000 (opinion of Kennedy, J.), and was willing to uphold a penalty even if it was the most severe in the nation for that crime. See Rummel, at 209-282. While the Solem decision acknowledged difficulties in making such comparisons, see 463 U. S., at 294-295; Harmelin, supra, at 1000 (opinion of Kennedy, J.), it still made interjurisdictional comparison a mandatory part of its three-part test. See Solem, supra, at 291-292.
The fourth principle, that proportionality review should be driven by objective factors, is derived from both Solem andRummel. See Harmelin, 501 U. S., at 1000 (opinion of Kennedy, J.). The deference in Rummel was driven by the need to avoid substituting subjective judicial sentiments for legislative policy choices. See Rummel, 445 U. S., at 275. In Solem, the quest for objectivity led to its three-part test. See 463 U. S., at 290-291. Justice Kennedy's opinion also recognized that "we lack clear objective standards to distinguish between sentences for different terms of years" making successful proportionality challenges to prison sentences " ' "exceedingly rare." ' " Harmelin, supra, at 1001 (quoting Solem, supra, at 290 (quoting Rummel, supra, at 272)).
The remaining important feature of the concurrence was the decision to forego the last two parts of the Solem test. Solem was now "understood as holding that comparative analysis within and between jurisdictions is not always relevant to proportionality review." Id., at 1004-1005. Thus, the last two Solem factors would only be referred to when "a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Id., at 1005.
Harmelin is a clear step back from Solem. Two justices voted to overrule it, while the remaining members of the majority would all but abandon two-thirds of its test. Justice Kennedy's opinion asserted it "neither 'eviscerate[s]'Solem, nor 'abandon[s]' its second and third factors . . . ." Id., at 1005 (quoting id., at 1018, 1020 (White, J., dissenting)). It did, however, represent a revival of Rummel and Hutto. See id., at 1005 (opinion of Kennedy, J.) ("full account"). Given the conflict between Solem and Rummel, any return to Rummel is necessarily a step back fromSolem.
This is the body of precedent that confronted the California appellate court when it addressed Andrade's Eighth Amendment claim: conflicting decisions providing comparatively little concrete guidance outside of a strong deference to noncapital sentences, and this Court stepping back from the only explicit test it had promulgated. The question is not simply whether the California court correctly identified and applied clearly established law, but rather whether there was any clearly established law for the court to apply?
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2. These briefs are available on our Web site, www.cjlf.org/briefs/ briefmain.htm.