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HISTORY Leandro Andrade (State prisoner/petitioner), who wasconvicted on two counts of petty theft and sentenced to life in prison under California's Career Criminal Punishment Act, also known as the Three Strikes law, petitioned for a writ of habeas corpus. The United StatesDistrict Court for the Central District of California, Christina A. Snyder, J., denied his petition, and the prisoner appealed. The United States Court of Appeals for the Ninth Circuit, Paez, Circuit Judge, reversed andremanded. Certiorari was granted. The Supreme Court held that the California Court of Appeal's decision affirming petitioner's two consecutive terms of 25 years to life in prison for a "third strike" conviction was not"contrary to" or an "unreasonable application" of the "clearly established" gross disproportionality principle set forth by Rummel, Solem, and Harmelin decisions ofUnited States Supreme Court and thus did not warrant federal habeas relief. The Supreme Court REVERSED. O'CONNOR, J., joined by REHNQUIST, C.J., and SCALIA, KENNEDY, and THOMAS, JJ. This case raises the issue whether the United States Court of Appeals for the Ninth Circuit erred in rulingthat 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). FACTS 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, Andradehas 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 six days in jail with 12 months' probation. Andrade was arrested again in November 1982 for multiple counts of firstdegree 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 "transportation of marijuana" and was sentenced to eight years in federal prison. In 1990, he was convicted in state courtfor 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 felony of "transportation of marijuana" and was sentenced to 2,191 days in federal prison. And in 1991, Andrade was arrested for a state parole violationescape 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 theKmart 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. Was 50 Years in Prison for Shoplifting $150 Worth of Videos "Cruel and Unusual Punishment"? In Lockyer v. Andrade (2003), SCOTUS upheld California's "three strikes" law.Lockyer, Attorney General of California

He admits his addiction controls his life and he steals for his habit. 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). UnderCalifornia 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. The decision to prosecute petty theft with a prior conviction as amisdemeanor or as a felony is in the discretion of the prosecutor. The trial court also has discretion to reduce the charge to a misdemeanor at the time of sentencing.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). In this case, the prosecutor decided to charge the two counts of theft as felonies rather than misdemeanors. The trialcourt denied Andrade's motion to reduce the offenses 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. As a consequence, each of Andrade'sconvictions 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 judgesentenced Andrade to two consecutive terms of 25 years to life in prison. See 667(c)(6), 667(e)(2)(B). On direct appeal in 1997, the California Court of Appeal affirmed Andrade's sentence of two consecutiveterms of 25 years to life in prison. 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 hispetition. The Ninth Circuit granted Andrade a certificate of appealability, and subsequently reversed thejudgment of the District Court. OPINION 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 applicationof, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. 2254(d)(1). AEDPA (Antiterrorism and Effective Death Penalty Act) circumscribes a federal habeascourt'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 (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. 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 violatesthe Eighth Amendment while the latter does not." 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. The final question is whether the California Court of Appeal's decision affirming Andrade's sentence is "contrary to, or involved an unreasonable applicationof," 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 Courtand nevertheless arrives at a result different from our precedent. 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. 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. Indeed, Harmelinallows a state court to reasonably rely on Rummel in determining whether a sentence is grossly disproportionate. The California Court of Appeal's decision 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 Solem. 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. The defendant in Rummel was sentenced to life in prison with the possibility of parole. Here, Andrade retains the possibility of parole. Solemacknowledged that Rummel would apply in a "similar factual situation." And while this case resembles to some degree both Rummel and Solem, it is not materially indistinguishable from either. Consequently, the state court did not confront a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrive at a result different from our precedent. Second, under 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'scase. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable. It is not enough that a federal habeas court, in its independent review of the legal question, is leftwith a firm conviction that the state court was erroneous. 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 court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Rather, that application must be objectively unreasonable. 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. Here, however, the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principlethe "precise contours" of which "are unclear." And it was not objectively unreasonable for the California Court of Appeal to conclude that these "contours" permitted an affirmance of Andrade's sentence.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. The judgment of the United States Court of Appeals for the Ninth Circuit, accordingly, is REVERSED.It is so ordered. DISSENT SOUTER, J., joined by STEVENS, GINSBURG, and BREYER, JJ. Andrade's sentence cannot survive Eighth Amendment review. His criminal history is less grave than Ewing's [Ewing v. California 2003], and yet he received a prisonterm 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 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 nonethelesspresents 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. Solem is controlling herebecause 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. The facts here are on all fours with those of Solem and point to the same result. 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 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). 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 nomeaning. The California court's holding was an unreasonable application of clearly established precedent.

1. How does the majority know that the three-strikes law isn't cruel and unusual?

2. How does the dissent know that it is cruel and unusual?

3. Are their opinions purely subjective, or are they based on some standards? If so, what are the standards?

4. Should the California legislature or the U.S. Supreme Court decide whether punishments are cruel and unusual? Explain your answer.

5. Do you believe 25 years to life is "grossly disproportionate" to Leandro Andrade's crime? How do you know whether it is or isn't?