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INTEREST OF AMICI CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

The Ninth Circuit's attack on California's "three strikes" law is an unwarranted expansion of habeas review which cripples an important recidivist sentencing scheme, and is thus contrary to the interest of victims and society that the CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

The prisoner, Leandro Andrade, was convicted in a California court of two counts of petty theft. Cal. Penal Code §§484, 487. See Andrade v. Roe, 270 F. 3d 743, 749 (CA9 2001). Petty theft is a misdemeanor, see Cal. Penal Code §490, but if the defendant was previously convicted of and served a term for burglary or other specified crimes, then the theft may be treated as either a misdemeanor or a felony. See Cal. Penal Code §666. Because the prisoner had three prior residential burglary convictions, his thefts were enhanced to felonies. See Andrade, supra, at 749. Andrade also had prior convictions for misdemeanor theft in 1982, a federal felony transportation of marijuana offense in 1988, a state petty theft offense in 1990, and a 1991 parole violation for escape from federal prison. Id., at 748-749. California law classifies residential burglary as a serious felony, see Cal. Penal Code §1192.7(c)(18), making Andrade subject to California's "three strikes" law. See Cal. Penal Code §1170.12(b)(1). Under the three strikes statute, Andrade received two consecutive 25-years-to-life sentences for his two felony theft convictions. SeeAndrade, supra, at 749.

A California Court of Appeal affirmed Andrade's conviction, rejecting an Eighth Amendment attack on his sentence in an unpublished opinion issued on May 13, 1997. App. to Pet. for Cert. 69. Relying on the California precedent, the Court of Appeal applied a three-part test that is almost identical to the test utilized in Solem v. Helm, 463 U. S. 277 (1983). Compare App. to Pet. for Cert. 77, with Solem, supra, at 292. The California Supreme Court denied the prisoner's petition for review on July 23, 1997. App. to Pet. for Cert. 81. Andrade filed a pro se habeas petition in the federal District Court for the Central District of California attacking his sentence on Eighth Amendment grounds. The District Court denied the petition and subsequently denied Andrade a certificate of appealability. See id., at 67.

The Ninth Circuit Court of Appeals granted Andrade a certificate of appealability and appointed counsel. See Andrade, 270 F. 3d, at 750. The Court of Appeals reversed the District Court, finding that Andrade's sentence was disproportionate to his crime in violation of the Eighth Amendment, and that the California Court of Appeal's decision disregarded the three-part test of Solem, supra, making it an unreasonable application of Supreme Court precedent and therefore not subject to the deferential review standards of 28 U. S. C. §2254(d)(1). See id., at 766-767. This Court granted California's certiorari petition on April 1, 2002.

SUMMARY OF ARGUMENT

Federal courts should address the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") issues before assessing the correctness of the state court decision. This Court has implicitly followed this practice in Penry v.Johnson, 532 U. S. 782 (2001) and Bell v. Cone, 535 U. S. __ (No. 01-400, May 28, 2002). This Court should now make its practice an express rule.

The present case differs from the Court's prior AEDPA cases because there are few clearly established principles in the unsettled body of law governing Eighth Amendment attacks on prison sentences. While the relevant decisions generally establish a deferential standard for reviewing sentences, there is a continuing conflict between two of the leading precedents in this area, Rummel v. Estelle, 445 U. S. 263 (1980) and Solem v. Helm, 463 U. S. 277 (1983). Rummel established a very deferential standard for reviewing proportionality claims against prison sentences. Although it indicated that some extraordinarily harsh sentences may not pass constitutional muster, such cases were necessarily rare.

Although Solem proclaimed to be similarly deferential, the execution of that standard differed significantly fromRummel. The second and third parts of its three-part proportionality test cannot be reconciled with Rummel. TheSolem Court also demonstrated a willingness to draw conclusions based upon sentencing philosophy that was anathema to the deference to legislative policy decisions in Rummel.

Harmelin v. Michigan, 501 U. S. 957 (1991) did not end the confusion. As a split opinion, it is a weak candidate for clarifying the law, although Justice Kennedy's narrower concurrence can be seen as the controlling precedent. That opinion does not conclusively resolve the conflict between Solem and Rummel, but does move the law more towardsRummel's broadly deferential standard. It does not attempt to provide adequate guidance for how to determine when a sentence is disproportionate because this area of the law is not amenable to such standards.

The treatment of proportionality challenges in other jurisdictions reflects the unsettled state of the law, as many state and federal courts decry the lack of standards in this field. Since Harmelin, some courts now claim that Solem has been overruled, and many more claim that it has been weakened. Under these circumstances, there is broad room for reasonable disagreement.

The state court did not fail to apply the proper precedent. It applied a California constitutional standard that is the equivalent of Solem's three-part test. Since Andrade's sentence is less severe and his culpability greater than the defendant in Solem, his case is not materially indistinguishable from Solem. Therefore, the state court satisfied the clearly established portion of 28 U. S. C. §2254(d).

The California court's rejection of Andrade's proportionality claim was a reasonable application of the little clearly established law there is in this area. The Ninth Circuit applied a clear error standard to assess the reasonableness of the state court decision. A better approach is to focus on finding reasons to support the state court decision, rather than assessing its alleged error. The decision to uphold Andrade's sentence is reasonable under this approach.

If this Court decides that the three strikes law is unconstitutional in Ewing v. California, No. 01-6978, the rejection of Andrade's federal habeas claim will not prevent him from getting relief in the California courts. California allows successive habeas petitions to raise claims made retroactive to final judgments. Since Andrade's claim would be retroactive under the first exception to Teague v. Lane, 489 U. S. 288 (1989) and under California's more generous retroactivity rule, he would be able to have his day in court.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.