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The Ninth Circuit's analysis of the reasonable application prong under 28 U. S. C. §2254(d) suffers from several flaws. Its misidentification of Solem v. Helm, 463 U. S. 277 (1983) as the controlling precedent to the near exclusion of the other precedents, see ante, at 17, distorts its analysis of whether the California court's decision was reasonable. Also, the federal court did not properly defer to California's determination that this was the appropriate sentence for Andrade. Most importantly, the Ninth Circuit applied the wrong standard for analyzing whether a state court decision reasonably applies this Court's precedents.
The problem with the Ninth Circuit's approach to the reasonable application prong begins with the standard it applied to this test. There is no detailed test to determine when a state court's application of Supreme Court precedent is objectively unreasonable. In the cases addressing this issue, this Court simply analyzed the state court opinion and the relevant Supreme Court precedents and concluded that the state decision was either unreasonable, see Williams v.Taylor, 529 U. S. 362, 397 (2000); Penry v. Johnson, 532 U. S. 782, 803-804 (2001) (Fifth Amendment claim), or reasonable. See id., at 795 (Eighth Amendment claim). Bell v. Cone, 535 U. S. __ (No. 01-400, May 28, 2002) (slip op., at 15-16). Other than informing the courts that unreasonableness must be determined objectively, and is more than mere error, see Williams, supra, at 410, this Court has given the lower federal courts little guidance in this admittedly difficult area. See ibid. As a consequence, the circuits have adopted their own tests for determining the reasonableness of a state court's decision. The Ninth Circuit's is far afield.
The Ninth Circuit standard for reasonableness under §2254(d) is "clear error." Under this standard, a court first determines whether the state court decision was correct under its own interpretation of Supreme Court precedent. If it disagrees with the state court decision, it next determines whether this "error" is "clear error." "Clear error" is defined as "where the Court of Appeals is left with a 'definite and firm conviction' that an error has been committed." Van Tran v. Lindsey, 212 F. 3d 1143, 1153 (CA9 2000). If the error is labeled "clear," then the state court decision is deemed unreasonable under §2254(d). See id., at 1153-1154.
Focusing on the purported state court error starts the analysis on the wrong foot. Congress did not equate the unreasonable application standard with state court "error." See Williams, 529 U. S., at 410. Focusing on state court error backs away from the deference accorded to state courts under §2254(d). It does not consider that in cases of disagreement with the lower federal courts, the state courts are very often correct and the federal courts are the ones in error. See Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888, 942 (1998). The Ninth Circuit's "approach . . . focuses on how sure the habeas court is that the state court has committed error, not whether the state court decision reveals an increment of wrongness beyond error." Francis S. v. Stone, 221 F. 3d 100, 110 (CA2 2000). The clear error standard also deflects the habeas court from addressing the AEDPA issue first. SeeBell v. Jarvis, 236 F. 3d 149, 162, n. 9 (CA4 2000). This Court should provide further guidance on how to determine when a state court decision is unreasonable.
Courts use tests in other contexts to determine whether an act is reasonable. The Fourth Amendment proscribes "unreasonable searches and seizures . . . ." U. S. Const., Amdt. 4. This Court guides efforts to assess whether a search or seizure is reasonable through a host of tests and standards. The reasonable suspicion standard helps courts and officers determine when a stop and frisk is reasonable. See Terry v. Ohio, 392 U. S. 1 (1968). Reasonableness can be detached from the Fourth Amendment's warrant requirement when the search is deemed reasonable after balancing society's interest in the search against the individuals' privacy interests. See Vernonia School Dist. No. 47Jv. Acton, 515 U. S. 646, 664-665 (1995). Giving the federal courts more tools to determine when a state court decision is reasonable is consistent with the letter and the spirit of §2254(d).
A proper standard for reasonableness must reflect the fact that genuinely unreasonable state court decisions are rare. State courts are quite willing and capable of enforcing the criminal defendant's constitutional protections, see Stone v.Powell, 428 U. S. 465, 493, n. 35 (1976); the AEDPA is a recognition of this fact. If federal habeas courts commonly find "unreasonable" state decisions, then AEDPA's deference to state convictions evaporates.
As in Williams, this Court can look to the circuit courts for a standard to apply to §2254(d). See Williams, 529 U. S., at 405 (partially adopting Green v. French, 143 F. 3d 865 (CA4 1998)). In O'Brien v. Dubois, 145 F. 3d 16 (CA1 1998), the First Circuit devised a useful standard for resolving reasonable application claims. "[F]or the writ to issue, the state court decision must be so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes." Id., at 25. Another formulation of this standard comes from the Seventh Circuit. "The statutory 'unreasonableness' standard allows the state court's conclusion to stand if it is one of several equally plausible outcomes . . . . Some decisions will be at such tension with governing U. S. Supreme Court precedents, or so inadequately supported by the record or so arbitrary, that a writ must issue." Hall v. Washington, 106 F. 3d 742, 748-749 (CA7 1997). This standard is not foreign to this Court's analysis. It has relied on the term "plausible" in a similar context. See Christianson v. Colt Industries Operating Corp., 486 U. S. 800, 819 (1988) (decision of coordinate court to transfer jurisdiction upheld under law-of-the case if "plausible"). Scheidegger, supra, 98 Colum. L. Rev., at 914-915 (discussing Christianson, supra).
Instead of examining the state court decision for error, habeas courts should see whether the decision is plausible. This is more than exchanging adjectives. "Plausible" is defined as "seemingly or apparently valid, likely or acceptable, credible . . . ." American Heritage Dictionary 1388 (3d ed. 1992). This shifts the inquiry away from whether the state decision was wrong to whether there are reasons that it could be right. If a reason for the decision can be found, it is not unreasonable. Federal courts applying §2254(d) should first look for the positive in state court opinions before examining them for error.
Kibbe v. Dubois, 269 F. 3d 26 (CA1 2001) illustrates these principles. Kibbe was convicted in a Massachusetts court for arson of a building. Id., at 28. The defendant ran from the police as they approached the crime scene. Once he was caught and read his Miranda rights, the defendant did talk to the police. See id., at 28-29. At trial he testified that he ran because he was on parole, but he had not given this explanation to the police. See id., at 29. Defense counsel commented in the opening and closing arguments that Kibbe voluntarily told the police what he was doing. See ibid. The prosecution argued at closing that Kibbe's failure to mention his reason for running from the police damaged his credibility, and that guilt should be inferred from flight. See ibid. The District Court found that this violated Doyle v. Ohio, 426 U. S. 610, 617-619 (1976) and the state court opinion was contrary to Doyle. See Kibbe,supra, at 31. It also found that this was an unreasonable application of Doyle, but declined to develop that holding. See id., at 32, n. 4. As an alternative holding, the District Court held that the state court had unreasonably applied the rule of Anderson v. Charles, 447 U. S. 404 (1980) to conclude that the defendant had waived his right to silence in its entirety, thus distinguishing Doyle. See Kibbe, supra, at 31. The District Court surveyed the treatment of similar cases in the federal circuits to come to the conclusion that "I am firmly convinced that error occurred and that theKibbe decision is an unreasonable outcome." Id., at 33.
After finding that the state court decision was not contrary to clearly established law, see id., at 35-36, the Circuit Court turned to the unreasonable application standard. Applying the First Circuit's "plausible, credible outcomes" standard, the Circuit Court noted that the case fell outside the Doyle and Charles decisions. See id., at 37. The fact that the issue was unresolved increases the chance "that there are other reasonable, yet contradictory, interpretations of Supreme Court precedent." Ibid. The state court's interpretation of Doyle and Charles was one alternative to the District Court's. See ibid. The First Circuit found that the state court's interpretation of Charles was credible, that "a court could plausibly argue that this holding should be extended to cover the facts of Kibbe's case." Id., at 38. This conclusion was supported by similar results in federal appellate decisions. See id., at 38-39. However, it was not necessary for these precedents to point out the correct path of the law. "Furthermore, given its limited scope of review under the AEDPA, a federal habeas court ought not to provide the definitive answer to this open question." Id., at 39. The state court decision did not have to be right, it only had to "rest[ ] upon a plausible interpretation of Supreme Court precedent . . . ." Ibid.
This approach addresses Andrade's claim much more accurately and economically than the Ninth Circuit's. Because the state of the relevant Eighth Amendment precedents is so confused, contradictory but still reasonable alternative interpretations of this Court's cases are likely. The California court's opinion is a plausible interpretation of what authority can be drawn from Harmelin, Solem v. Helm, 463 U. S. 277 (1983), Rummel v. Estelle, 445 U. S. 263 (1980), and Hutto v. Davis, 454 U. S. 370 (1982).
This case is outside the facts of all four decisions. Harmelin and Hutto involved drug crimes, not recidivist schemes. Solem, in addition to being diminished by Harmelin, involved a harsher sentence. While Andrade's sentence is long, it is still less than the sentence of life without the possibility of parole in Solem. More importantly, Andrade's 40-year minimum is the result of two convictions with consecutive sentences, not the single conviction at issue in Harmelin,Solem, Hutto, and Rummel. "It would scarcely be competent for a person to assail the constitutionality of the statute prescribing a punishment for burglary on the ground that he had committed so many burglaries that, if the punishment for each were inflicted on him, he might be kept in prison for life." State v. Four Jugs of Intoxicating Liquors, 2 Atl. 586, 593 (Vt. 1886). Finally, Andrade's prior residential burglaries were more serious than Helm's third-degree burglaries. Residential burglary is more than a simple property crime. The federal sentencing guidelines require markedly enhanced sentences for offenders who have been convicted in federal courts for "a crime of violence" or "controlled substance offense" and have two or more prior convictions of such offenses. See U. S. Sentencing Guidelines §4B1.1(1). Among the listed violent crimes is residential burglary. See id., at §4B1.2. As one federal judge has noted, "these subsections establish that an offense is a 'crime of violence' if injury occurs, is threatened, is attempted, or is likely." United States v. Rutherford, 54 F. 3d 370, 378 (CA7 1995) (Easterbrook, J., concurring). Since Solem has been diminished, and Andrade's criminal history is more severe than Helm's, it was plausible for the state court to distinguish Solem.
The California Court of Appeal's duty was to apply in a reasonable manner the principles of deference and objectivity from Justice Kennedy's opinion in Harmelin. The decision to not impose its own sentencing philosophy in place of that of the electorate and the sentencing judge (3) is consistent with the deference principle. Given the unsettled state of the law in this area, Andrade's more serious criminal history compared to any of the four defendants in the relevant Supreme Court authorities, and the fact that he was convicted of two separate felonies, the California appellate court's weighing of culpability and severity of punishment is plausible.
The AEDPA should foreclose any holding on the merits of Andrade's Eighth Amendment claim. The Eighth Amendment status of California's three strikes law will be addressed on the merits in the separate case of Ewing v.California, No. 01-6978. For the reasons CJLF intends to brief in that case, the state should prevail on the straight merits. However, we will also address here the contingency of a change in the law wrought by Ewing.
If this Court decides that the statute is unconstitutional as applied in Ewing, the rejection of Andrade's federal habeas claim will not prevent him from obtaining relief in the California courts. California allows successive habeas petitions for claims "based on a change in the law which is retroactively applicable to final judgments." People v.Clark, 5 Cal. 4th 750, 775, 855 P. 2d 729, 745 (1993). Given the unsettled state of the Eighth Amendment in this area, any decision favoring Ewing would be a new rule. A decision in Ewing's favor would be retroactive on federal habeas under the first prong of Teague v. Lane, 489 U. S. 288 (1989) as it would prohibit a type of punishment for a class of defendant because of their status or offense. See Penry v. Lynaugh, 492 U. S. 302, 329-330 (1989). California's rule on retroactivity is even more generous. A habeas petition may raise an issue previously rejected on appeal "when there has been a change in law affecting the petitioner." In re Harris, 5 Cal. 4th 813, 841, 855 P. 2d 391, 407 (1993). If this Court decides in Ewing's favor, proper use of the AEDPA in the present case will not keep Andrade from getting any deserved relief in the California courts.
Federal habeas relief may not be granted if state remedies are not exhausted. See 28 U. S. C. §2254(b). Exhaustion is determined in the present tense. The fact that an unexhausted remedy existed in the past does not preclude exhaustion if that remedy is no longer available. Coleman v. Thompson, 501 U. S. 722, 732 (1991). Conversely, the fact that the state courts did not offer a remedy at one point does not satisfy exhaustion if they offer one now.
In Gusik v. Schilder, 340 U. S. 128 (1950), Gusik was convicted of murder in a court-martial, and attacked the conviction through a habeas petition in federal District Court. See id., at 129. The Court of Appeals reversed the District Court's grant of relief, holding that Gusik first had to exhaust a newly created administrative remedy. See id., at 129-130. Therefore it dismissed the petition without prejudice to file a new petition after exhausting the administrative remedy. See id., at 130. This Court held that instead of dismissing the petition, the Court of Appeals should have "held the case pending resort to the new remedy . . . ." Id., at 133. If Gusik obtains administrative relief then the petition is dismissed, if he is unsuccessful it is reinstated, avoiding the cost of relitigation. See id., at 133-134. While it disposed of the case differently, this Court still agreed with the main point of the Court of Appeal that the new remedy must be exhausted before being addressed in a federal habeas petition.
If this Court rules in favor of Ewing, Andrade's case should be treated similarly. The federal courts should either dismiss or withhold judgment on his claim until it is exhausted in the California courts. The dismissal rule is more strict now than it was at the time of Gusik. See Rose v. Lundy, 455 U. S. 509, 522 (1982). A remand petition following exhaustion is not "successive." Slack v. McDaniel, 529 U. S. 473, 478 (2000). The statute of limitations "clock" resets upon announcement of the retroactive new rule. 28 U. S. C. §2244(d)(1)(c). California's liberal approach to retroactivity on habeas corpus guarantees that Andrade would have his day in state court, and federal review would remain available in the highly unlikely event that California's courts fail to reasonably apply whatever new rule may be created in Ewing.
The decision of the Ninth Circuit Court of Appeals should be reversed.
June, 2002
Respectfully submitted,
Charles L. Hobson
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3. Three strikes sentences are not truly mandatory. The sentencing judge has discretion to "strike" prior convictions in the interests of justice. See Cal. Penal Code §1385; People v. Superior Court (Romero), 13 Cal. 4th 497, 529-530, 917 P. 2d 628, 647 (1996); People v. Williams, 17 Cal. 4th 148, 161, 948 P. 2d 429, 437 (1998) (describing discretion).