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Any attempt to find a clearly established precedent for the California court to follow begins in Harmelin v. Michigan, 501 U. S. 957 (1991). In addition to being the last word on the subject, Harmelin reflects the fissures and uncertainty running through the Eighth Amendment's proportionality requirement for noncapital sentences. As a split opinion in an already conflicted body of precedent, Harmelin is not a strong candidate for clearly establishing any precedent. However, a handful of principles can be refined from the Harmelin opinion. In a fragmented opinion, the holding is taken from the opinion concurring on the narrowest grounds. See Marks v. United States, 430 U. S. 188, 193 (1977). Since Justice Kennedy's concurrence did not call for overruling any of this Court's precedents, it is the narrower of the two Harmelin concurrences, and therefore is Harmelin's holding.
Harmelin does stand for more than deference to noncapital sentences. The reiteration of the principle that sentences must be analyzed by objective factors, see Harmelin, 501 U. S., at 1000 (opinion of Kennedy, J.), is not expressly deferential. But see Rummel, 445 U. S., at 275(extensive judicial intrusion into legislative punishment decisions threatens objectivity principle). However, the objectivity principle provides limited guidance. Justice Kennedy's concurrence reiterates the difficulty of finding any objective factors for analyzing the constitutionality of prison sentences. See Harmelin, supra, at 1001 (opinion of Kennedy, J.). Once again, this supports deferring to the constitutionality of prison sentences. The "relative lack of objective standards" makes successful Eighth Amendment attacks on prison sentences " ' "exceedingly rare." ' " Ibid. (quoting Solem, 463 U. S., at 290 (quoting Rummel,supra, at 272)).
The final principle, that the Eighth Amendment only forbids " 'grossly disproportionate' " sentences, see ibid. (quoting Solem, 463 U. S., at 288), is the culmination of the deference that is the central theme of Harmelin. This drove the final principle of Justice Kennedy's Harmelin concurrence, dispensing with Solem's comparative analysis absent an inference of gross disproportionality. See id., at 1005. Like the rest of Justice Kennedy's opinion, this principle is most likely to be violated by a court improperly striking down a sentence.
While Justice Kennedy's opinion instructed reviewing courts to defer to all but the grossly disproportionate sentences, it understandably provides little real guidance on how to determine when a prison sentence raises such an inference. The law is unclear in this area because there are comparatively few proportionality cases, and they address "sentences of different types." See id., at 998. The analysis of Harmelin's sentence of life without possibility of parole a first-time drug offense has minimal relevance for Andrade's two consecutive 25-years-to-life sentences under a recidivist sentencing statute. This lack of ready standards means that the scope of reasonable disagreement is necessarily very broad. Therefore very few applications of these precedents can be classified as "unreasonable."
Although Solem and Rummel present closer facts, their guidance is limited. A final principle of Justice Kennedy'sHarmelin concurrence is that the law governing Eighth Amendment attacks on prison sentences is unclear and conflicted. See ibid. This opinion did not resolve the conflict between Solem and Rummel, see part I A 3, ante, that afflicts this part of the law. The common principles it drew from these cases boil down to instruction to the appellate courts to defer to most prison sentences presented to them. While stare decisis kept it from accepting Justice Scalia's invitation to overrule Solem, see id., at 996, Justice Kennedy's concurrence does represent a significant move away from Solem towards Rummel. See part I A 4, ante. Contrary to the Ninth Circuit's assertion, see Andrade v. Roe, 270 F. 3d 743, 766-767 (CA9 2001), Solem does not compel the result in this case because its exact strength as precedent is uncertain. While Solem may have survived Harmelin, it has been diminished. Precisely how diminished is not yet known.
The confused state of the law after Harmelin is reflected by the reaction of the state and federal courts. Many decisions in the state and lower federal courts comment on the uncertain state of the law since Harmelin. See, e.g.,United States v. Sarbello, 985 F. 2d 716, 723 (CA3 1994) ("lack of clear directive from the Supreme Court"); Neal v.Grammer, 975 F. 2d 463, 465 (CA8 1992) ("the future of the proportionality test is uncertain"); Hawkins v. Hargett, 200 F. 3d 1279, 1281 (CA10 1999) (Harmelin "fractured" leaving the meaning of Solem "less than clear");McCollough v. Singletary, 967 F. 2d 530, 535 (CA11 1992) (viability of Solem called into doubt by Harmelin); Statev. Brown, 825 P. 2d 482, 490-491 (Idaho 1992) (Harmelin "fractured"); People v. Gibson, 90 Cal. App. 4th 371, 387, 108 Cal. Rptr. 2d 809, 820 (2001) (continued existence of proportionality review questionable after Harmelin); Statev. Oliver, 745 A. 2d 1165, 1169 (NJ 2000) ("we have generally avoided entering the debate among the several members of the Supreme Court concerning the Eighth Amendment's proscription against cruel and unusual punishment"); State v. Thorp, 2 P. 3d 903, 906 (Or. App. 2000) (Harmelin was "severely fractured"); State v. Bonner, 577 N. W. 2d 575, 579 (SD 1998) (regretting lack of majority opinion in Harmelin); State v. Jones, 543 S. E. 2d 541, 545, n. 11 (SC 2001) ("questionable" whether Solem test still mandatory after Harmelin); State v. Harris, 844 S. W. 2d 601, 602 (Tenn. 1992) (precise contours of the federal proportionality guarantee unclear); State v. Bacon, 702 A. 2d 116, 122, n. 7 (Vt. 1997) (Harmelin is a "fractured opinion" that casts doubt on Solem).
The Ninth Circuit's opinion in this case reflects the confused state of the law. It casually dismissed the California Court of Appeal's decision for failing to follow clearly established law because it questioned Solem in light ofHarmelin. See Andrade, 270 F. 3d, at 766-767. This ignores both the conflicts within this Court's precedents, seeante, at 10-12, and the many state and federal opinions questioning Solem after Harmelin.
Some courts have gone so far as to claim that Solem was effectively overruled by Harmelin. Not long after Harmelinwas decided, the Fifth Circuit stated that "disproportionality survives; Solem does not." McGruder v. Puckett, 954 F. 2d 313, 316 (CA5 1992); see also Smallwood v. Scott, 73 F. 3d 1343, 1346, n. 4 (CA5 1996) ("Solem was overruled to the extent that it found in the Eighth Amendment a guarantee of proportionality); Edwards v. State, 800 So. 2d 454, 469 (Miss. 2001) (Solem overruled to the extent that it guaranteed proportionality"). Others have been more circumspect, concluding, as the California Court of Appeal did, that Solem was called into question by Harmelin. See, e.g., Sarbello, 985 F. 2d, at 723; United States v. Kratsas, 45 F. 3d 63, 66 (CA4 1995) ("cast some doubt");McCollough, 967 F. 2d, at 535 (viability of Solem called into doubt); Brown, 825 P. 2d, at 491-492 ("seriously erodes"); State v. Lara, 580 N. W. 2d 783, 785 (Iowa 1998) ("called into question"); State v. Scott, 961 P. 2d 667, 672 (Kan. 1998) ("discredited"); State v. Lindsey, 770 So. 2d 339, 344, n. 2 (La. 2000) ("called into question"); State v.Riley, 497 N. W. 2d 23, 26 (Neb. 1993) ("extremely doubtful" precedent). Finally, another group of courts found thatSolem has been limited by Harmelin. See, e.g., United States v. Bucuvalas, 970 F. 2d 937, 946 n. 15 (CA1 1992) ("significant curtailment"), overruled on other grounds in Cleveland v. United States, 531 U. S. 1218 (2000); Hawkins, 200 F. 3d, at 1282 ("narrows Solem"); People v. Cooper, 43 Cal. App. 4th 815, 820, 51 Cal. Rptr. 2d 106, 108 (1996) ("weakened substantially"); People v. Hindson, 703 N. E. 2d 956, 965 (Ill. App. 1998) ("narrowed"); State v.Lee, 841 S. W. 2d 648, 654 (Mo. 1992) ("altered"). When the California appellate court questioned Solem, it had plenty of company.
This is relevant to the "clearly established federal law" inquiry under §2254(d). Although the source of clearly established law is restricted to this Court's decisions, Williams v. Taylor, 529 U. S. 362, 412 (2000), the fact that the lower courts have difficulty in deriving a clear rule from this Court's precedents is relevant to determining whether the purported rule is clearly established. See Caspari v. Bohlen, 510 U. S. 383, 395 (1994) (conflicting, reasonable views of lower courts precluded "old-rule" status under Teague); Williams, supra, at 412 (equivalence of Teague "old rule" with AEDPA "clearly established"). If questioning Solem in light of Harmelin constitutes a failure to apply established Supreme Court precedent, then why have so many other courts followed the same path?
A state court decision is: " 'contrary to' our clearly established precedent if the state court either 'applies a rule that contradicts the governing law set forth in our cases,' or '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.' " Penry v. Johnson, 532 U. S. 782, 792 (2001) (quoting Williams, 529 U. S., at 405-406).
This is a matter of rule selection. Because this Court's precedents are not always clear or consistent, see, e.g.,Harmelin v. Michigan, 501 U. S. 957, 996-997 (1991) (opinion of Kennedy, J.); Thompson v. Keohane, 516 U. S. 99, 111 (1995), it may not be easy to discern the governing law from this Court's cases. While confusion in the lower federal and state courts is not dispositive, it is a symptom of an unclear or conflicted body of law, i.e., not "clearly established."
If this Court could not agree on the proper standard for assessing proportionality challenges to prison sentences inHarmelin, then there can be very little "clearly established federal law" in this field. At most, appellate courts presented with proportionality attacks on prison sentences should compare the severity of the sentence to the magnitude of the crime and the defendant's criminal history to determine whether there is an inference of gross disproportionality. This determination is made with "utmost deference to the Legislature and the sentencing court." See Bonner, 577 N. W. 2d, at 580. If an inference of gross disproportionality is found, only then may the reviewing court turn to other objective factors. These may or may not include the Solem factors, or other factors not yet identified by this Court.
What is not clearly established is any particular method for comparing punishment and culpability. Because the conflict between Rummel and Solem is unresolved, neither of these different approaches can be said to clearly govern proportionality claims. While Justice Kennedy's Harmelin opinion provides some guidance, the life without possibility of parole sentence for a drug conviction gives Harmelin little relevance to Andrade's lesser sentence under a recidivism statute. Since each defendant is unique, and it is difficult to draw a line separating discrete prison sentences, see Rummel, 445 U. S., at 275, it may be impossible to give more concrete guidance. So long as a state court compares the culpability of the defendant's crime and criminal history to the severity of the sentence, then its decision is not contrary to any principle of federal law which has been clearly established by this Court up to this time.
The California Court of Appeal applied an independent state constitutional standard to the defendant's disproportionality claim that was almost identical to Solem's three-part test. "A tripartite test has been established to determine whether a penalty offends the prohibition against cruel and unusual punishment. First, courts examine the nature of the offense and the offender, with particular regard to the degree of danger both present to society. Second a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions." App. to Pet. for Cert. 77 (internal quotations omitted); accord People v. King, 16 Cal. App. 4th 567, 571, 20 Cal. Rptr. 2d 220, 222 (1993); In re Lynch, 8 Cal. 3d 410, 425-427, 503 P. 2d 921, 930-932 (1972).
Since this standard is as favorable to the defendant as any articulated by this Court, including Solem, the California court did not choose the incorrect rule. Andrade's case is not "materially indistinguishable" from Solem. His sentence is less severe than Helm's and his culpability is greater. Therefore, the California court at least identified and applied the proper rule. This was not a rogue state court ignoring clearly established precedent. Instead, when confronted with a confusing body of law, it applied a state constitutional standard more generous than the defendant was entitled to under this Court's cases. The state court's decision cannot be said to be "contrary to clearly established Federal law" as that phrase is interpreted in Williams.
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