PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 09-3586

______

NAKIA WILLIAM GARRUS,

 Appellant

v.

*SECRETARY OF THE PENNSYLVANIA

DEPARTMENT OF CORRECTIONS;

THE DISTRICT ATTORNEY OF THE

COUNTY OF PHILADELPHIA;

THE ATTORNEY GENERAL FOR THE

STATE OF PENNSYLVANIA

*Pursuant to Rule 43(c), Fed. R. App. P.

______

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-07-cv-00187)

District Judge: Honorable Timothy J. Savage

______

Argued En Banc May 30, 2012
2

Before: McKEE, Chief Judge, SLOVITER, SCIRICA,

RENDELL, AMBRO, FUENTES, SMITH,

FISHER, CHAGARES, JORDAN, HARDIMAN,

GREENAWAY, JR. and VANASKIE, Circuit Judges.

(Filed: September 21, 2012)

David R. Fine

Anthony R. Holtzman (ARGUED)

K&L Gates

17 North Second Street, 18th Floor

Harrisburg, PA 17101

Counsel for Appellant

Thomas W. Dolgenos (ARGUED)

David C. Glebe

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for the Secretary of the

Pennsylvania Department of

Corrections, the District Attorney of the

County of Philadelphia and the Attorney

General for the State of Pennsylvania

Robert M. Wolff

Pennsylvania Department of Corrections

Office of Chief Counsel

1920 Technology Parkway

Mechanicsburg, PA 17050

Counsel for the Secretary of the
3

Pennsylvania Department of

Corrections

Robert M. Falin

Montgomery County Office of District Attorney

P.O. Box 311

Norristown, PA 19404

Counsel for the District Attorney of the

County of Philadelphia and the Attorney

General for the State of Pennsylvania

______

OPINION OF THE COURT

______

FISHER, Circuit Judge, joined by McKEE, Chief Judge, and 

SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, 

SMITH, and JORDAN, Circuit Judges.

William Garrus (“Garrus”), a Pennsylvania state 

prisoner, seeks federal habeas relief under 28 U.S.C. § 2254, 

as amended by the Anti-Terrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”). Garrus was found guilty in 

state court of voluntary manslaughter in 2001. At sentencing, 

the judge increased his sentence beyond the statutory 

maximum based on 42 Pa. Cons. Stat. § 9714, Pennsylvania‟s 

“three strikes” law. In order to do so, the judge made a 

judicial finding that Garrus had previously been convicted of 

burglarizing an occupied building, when, in fact, he had only 

pled guilty to, and been convicted of, second degree burglary 

(which, under Pennsylvania law, necessarily requires that the 
4

burglarized building was unoccupied). In the habeas petition 

now before us, Garrus argues that this judicial factfinding 

violated the rule of Apprendi v. New Jersey, requiring that 

“[o]ther than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and proved 

beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). The 

District Court denied the petition on the basis that the highest 

state court determination upholding Garrus‟s sentence was 

not contrary to or an unreasonable application of clearly 

established Federal law.

Key to our determination is a single question: 

whether, pursuant to AEDPA, the state court unreasonably 

applied Apprendi by allowing Garrus to be sentenced beyond 

the statutory maximum based on a judicial finding that Garrus 

burglarized an occupied building, despite his plea to the 

contrary.1 For the reasons set forth below, we hold that the 

state court determination upholding Garrus‟s sentence was 

objectively unreasonable, and that Garrus is entitled to habeas 

relief. Accordingly, we will reverse the order of the District 

Court.

 

1 We agree with Judge Hardiman that the order for 

rehearing en banc misstated the issue. Dissenting Op. of 

Hardiman, J. at Part I; Order at 1-2, Garrus v. Secretary of the 

Pa. Dep’t of Corr., No. 09-3586 (3d. Cir. Feb. 24, 2012). 

Nonetheless, the parties have briefed and argued, and we now 

analyze, the proper question in this case, which is stated 

above.
5

I.

On February 10, 2000, Garrus was at the home of his 

girlfriend, Toi Bryant, with whom he has a daughter, when 

Bryant‟s ex-boyfriend, Charles Goode, showed up at the 

residence. Shortly after Goode arrived, an argument ensued 

between him and Bryant involving their child. As the 

argument escalated, Garrus took his daughter upstairs. He 

later returned downstairs to the kitchen where Goode and 

Bryant were arguing. After Garrus and Goode exchanged 

some heated words, a fight broke out between the two men. 

Garrus picked up a kitchen knife and stabbed Goode several 

times in the chest area. Goode broke away from Garrus and 

ran upstairs to the bathroom. Garrus left the home. When 

police arrived, both Goode and Bryant identified Garrus as 

the attacker. Goode later died from his injuries.

Following a jury trial in the Philadelphia County Court 

of Common Pleas, Garrus was convicted on March 9, 2001, 

of voluntary manslaughter and possession of an instrument of 

crime. A conviction for voluntary manslaughter carries a 

maximum sentence of 20 years of imprisonment. 18 Pa. 

Cons. Stat. §§ 1103, 2503(c). However, the Commonwealth 

of Pennsylvania (the “Commonwealth”) notified the trial 

court that it would seek a sentencing enhancement under 

Pennsylvania‟s “three strikes” law, which requires a judge to 

sentence a defendant to a minimum term of 25 years‟

imprisonment (and a maximum of up to life imprisonment) if 

the defendant was previously convicted of two or more 

separate “crimes of violence.” 42 Pa. Cons. Stat. § 9714. 

“Crimes of violence” may include first degree burglary 

(defined as, inter alia, burglary of an occupied structure), but 
6

do not include second degree burglary (defined as, inter alia,

burglary of an unoccupied structure).2

On April 30, 2001, the trial court held the first of two 

sentencing hearings. The Commonwealth offered evidence 

 

2 A burglary is only a “crime of violence” when it is 

“burglary of a structure adapted for overnight accommodation 

in which at the time of the offense any person is present[.]” 

42 Pa. Cons. Stat. § 9714. Under Pennsylvania law, seconddegree and first-degree burglary are mutually exclusive. 

Second-degree burglary is burglary that occurs where the 

structure “is not adapted for overnight accommodation and 

. . . no individual is present at the time of entry[.]” 18 Pa. 

Cons. Stat. § 3502(c)(2). First-degree burglary, on the other 

hand, occurs where the structure is adapted for overnight 

accommodation, or if an individual is present at the time of 

entry. 18 Pa. Cons. Stat. § 3502. By definition, then, firstdegree burglary that includes both factors (structure adapted 

for overnight accommodation and an individual present) is a 

“crime of violence,” but second-degree burglary is not a 

“crime of violence.” See Commonwealth v. Ausberry, 891 

A.2d 752, 756 n.3 (Pa. Super. Ct. 2006) (“[T]he definition of 

a crime of violence . . . corresponds to the definition of first 

degree burglary as set forth in section 3502(c)(1) and 

3502(c)(2).” (quoting Commonwealth v. Guilford, 861 A.2d 

365, 375 (Pa. Super. Ct. 2004))); Guilford, 861 A.2d at 375 

(“[T]he section 9714(g) definition of burglary as a crime of 

violence corresponds to the definition of burglary as a first 

degree felony,” and thus, second-degree burglary “is not a 

crime of violence pursuant to section 9714(g).”).
7

that Garrus had three prior convictions for “crimes of 

violence:” (1) a January 1995 conviction for first-degree

robbery; (2) a February 1995 conviction for first-degree 

robbery; and (3) a February 1997 plea and conviction for 

second-degree burglary. The Commonwealth argued that 

although Garrus had only pled guilty to second degree 

burglary in 1997, the trial court should consider a police 

report and witness statements regarding that burglary to find 

instead that the building Garrus had burglarized in 1997 was 

occupied. On the basis of the police report and witness 

statements, the trial court found at the second sentencing 

hearing on May 8, 2001, that Garrus‟s prior 1997 conviction 

for second-degree burglary constituted a crime of violence

under § 9714. Commonwealth v. Garrus, June Term 2000 

No. 0092, slip op. at 17 (Phila. Cnty. Ct. Com. Pl. Jan. 16, 

2002). Additionally, it found that the two 1995 robberies 

constituted two separate crimes of violence, and that his 

conviction for voluntary manslaughter was his fourth crime of 

violence. Id. The trial court sentenced Garrus to a term of 25 

to 50 years‟ imprisonment. Id.

Garrus appealed his conviction and sentence to the 

Superior Court of Pennsylvania.3 He argued that, by 

definition, his 1997 second-degree burglary conviction did 

not constitute a “crime of violence” under Pennsylvania‟s 

“three strikes” law. The Superior Court of Pennsylvania 

 

3 On appeal in this Court, Garrus challenges only his 

sentence under Pennsylvania‟s “three strikes” law. 

Accordingly, we refer solely to the prior resolution of this 

claim.
8

adopted the trial court‟s opinion in its entirety. 

Commonwealth v. Garrus, No. 2592 EDA 2001 (Pa. Super. 

Ct. Oct. 18, 2002). The Supreme Court of Pennsylvania 

granted Garrus‟s petition seeking allocatur on the sole issue 

of Garrus‟s sentence, Commonwealth v. Garrus, 817 A.2d 

455 (Pa. 2003), but later dismissed the appeal in September 

2003 as having been improvidently granted. Commonwealth

v. Garrus, 832 A.2d 1063 (Pa. 2003).

In April 2004, Garrus filed a pro se petition for postconviction relief in the Philadelphia County Court of 

Common Pleas, pursuant to Pennsylvania‟s Post Conviction 

Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq., 

challenging his sentence. He argued that the trial court, at 

sentencing, violated his constitutional rights, as articulated in 

Apprendi, 530 U.S. at 476, by relying on the police report and 

victim statement to determine that his 1997 burglary 

conviction was a “crime of violence” under Pennsylvania‟s

“three strikes” law. Garrus also asserted that state law 

required his two 1995 robbery convictions to be considered as 

one “crime of violence” under the “three strikes” law. As a 

result, Garrus claimed that he had, at most, one prior 

conviction for a “crime of violence,” rendering him ineligible 

for the 25-year mandatory minimum sentence he had 

received.

Garrus‟s PCRA petition was dismissed in February 

2005. A month later, the Supreme Court rendered a decision 

in Shepard v. United States, 544 U.S. 13 (2005), in which the 

Court held that a sentencing court is not permitted to consider 

police reports in determining whether a prior conviction 

constituted a “violent crime” under the Armed Career 
9

Criminal Act (“ACCA”), 18 U.S.C. § 924, a federal 

recidivism statute. Id. at 16, 26.

On appeal from the denial of his PCRA petition, 

Garrus argued that the sentencing court‟s consideration of the 

police report and victim statement, with respect to his 1997 

burglary conviction, violated his rights under Apprendi and 

Shepard, and he again argued that his two 1995 robbery 

convictions constituted one “crime of violence.” The 

Superior Court of Pennsylvania affirmed the denial of his 

PCRA petition. Commonwealth v. Garrus, No. 961 EDA 

2005 (Pa. Super. Ct. Apr. 18, 2006). In its opinion, the 

Superior Court acknowledged that Apprendi requires that 

“any fact (other than prior conviction) that increases the 

maximum penalty for a crime must be charged in an 

indictment, submitted to a jury, and proven beyond a 

reasonable doubt.” Id. at 8-9 (quoting Apprendi, 530 U.S. at 

476). However, it determined that the prior conviction 

exception permitted the sentencing judge to find that Garrus 

had burglarized an occupied building despite his plea to the 

contrary, and to sentence him beyond the statutory maximum 

accordingly. The Superior Court also determined that the 

Supreme Court‟s decision in Shepard did not affect the 

validity of the prior conviction exception established in 

Apprendi. Finally, on the basis that the 1997 burglary 

constituted a “crime of violence,” the Superior Court declined 

to reach the issue of whether the two 1995 robberies 

constituted separate crimes. The Supreme Court of 

Pennsylvania denied Garrus‟s petition seeking further 

appellate review. Commonwealth v. Garrus, 906 A.2d 639 

(Pa. Aug. 29, 2006) (table).
10

On January 16, 2007, Garrus filed a petition for writ of 

habeas corpus in the United States District Court for the 

Eastern District of Pennsylvania, pursuant to 28 U.S.C. 

§ 2254. Garrus raised the same challenges to both his 1997 

burglary conviction and the two 1995 robbery convictions. 

The Magistrate Judge denied Garrus‟s petition, Garrus v. 

Mazurkiewicz, No. 07-187 (E.D. Pa. May 28, 2008), and

concluded that it was precluded from granting federal habeas 

relief because the sentencing court‟s consideration of the 

police report and victim statement in determining whether 

Garrus had two prior convictions for crimes of violence under 

Pennsylvania‟s “three strikes” law was not contrary to, or an 

unreasonable application of, clearly established Supreme 

Court precedent. Id. at 38-39.

The Magistrate Judge also concluded that Garrus‟s 

argument that his two 1995 robbery convictions should be 

considered as one for purposes of the recidivism statute was 

therefore moot, as Garrus still had at least two prior 

convictions for crimes of violence – the 1997 burglary 

conviction and at least one of the 1995 robbery convictions. 

In any event, the Magistrate Judge reasoned, Garrus‟s 

challenge to the 1995 robbery convictions involved an 

interpretation of state law and could not be considered by 

federal courts in a habeas petition.

Nevertheless, the Magistrate Judge recommended that 

the District Court issue a certificate of appealability to this 

Court, limited to the issue involving the 1997 burglary 

conviction. The District Court adopted the Magistrate 

Judge‟s recommendation, with the exception that it rejected 

the Magistrate Judge‟s determination that sufficient grounds 
11

existed to issue a certificate of appealability. Garrus v. 

Johnson, No. 07-187 (E.D. Pa. Aug. 18, 2009). Garrus 

appealed, and on March 12, 2010, we granted a certificate of 

appealability to consider the issue of whether the state 

sentencing court violated Garrus‟s constitutional rights by 

labeling the 1997 second-degree burglary conviction a “crime 

of violence” for purposes of applying Pennsylvania‟s “three 

strikes” law.

II.

The District Court had jurisdiction to consider 

Garrus‟s habeas petition pursuant to 28 U.S.C. § 2254, as the 

claim raised in the petition has been properly exhausted in the 

state courts. See Alston v. Redman, 34 F.3d 1237, 1242 (3d 

Cir. 1994).4 We have jurisdiction to review the District 

 

4 Our review of Garrus‟s claim is not barred by the 

adequate and independent state ground doctrine. See Harris 

v. Reed, 489 U.S. 255, 262 (1989). In its PCRA opinion, the 

Pennsylvania Superior Court noted that Garrus might have 

“three strikes” against him even without counting the 

burglary charge as a “crime of violence,” but it failed to 

clearly decide the issue, relying instead on the finding that the 

burglary charge comprised one of the three necessary strikes. 

Commonwealth v. Garrus, No. 961 EDA 2005, slip op. at 10-

11 (Pa. Super. Ct. Apr. 18, 2006). That opinion was the last 

state court decision on the merits, see Greene v. Fisher, 132 

S. Ct. 38, 43-45 (2011), and because it did not “clearly 

express[] . . . reliance on an adequate and independent statelaw ground, we may address [the] federal issue considered by 

the state court.” Harris, 489 U.S. at 263.
12

Court‟s judgment pursuant to 28 U.S.C. §§ 1291 and 2253. 

We exercise de novo review over a District Court‟s denial of 

habeas relief, Vega v. United States, 493 F.3d 310, 314 (3d 

Cir. 2007), and apply the highly deferential AEDPA standard, 

which, in this case, precludes us from granting habeas relief 

unless the challenged state court decision was “contrary to, or 

involved an unreasonable application of, clearly established 

Federal law[.]” 28 U.S.C. § 2254(d)(1).

III.

Core to a criminal defendant‟s constitutional rights is 

the principle that “criminal convictions [must] rest upon a 

jury determination that the defendant is guilty of every 

element of the crime with which he is charged, beyond a 

reasonable doubt.” United States v. Gaudin, 515 U.S. 506,

510 (1995); see also In re Winship, 397 U.S. 358, 364 (1970). 

In Apprendi, the Supreme Court held that this same right 

applies to a sentencing factor that would increase a 

defendant‟s sentence beyond the statutory maximum because, 

like an element of a separate crime, such a sentencing factor 

results in a higher sentence than that which could be 

prescribed for the original crime. 530 U.S. at 476, 490. 

Thus, there is no “principled basis” for treating such a 

sentencing factor differently than an element of a crime. Id. 

at 476. The exception is that a judge can increase the 

sentence beyond the statutory maximum based on “the fact of 

a prior conviction” because a prior conviction has already 

been established through procedural safeguards. Id. at 488-

90; Jones v. United States, 526 U.S. 227, 249 (1999) (“[A] 

prior conviction must itself have been established through 
13

procedures satisfying the fair notice, reasonable doubt, and 

jury trial guarantees.”).

These precepts are “rooted in longstanding commonlaw practice[.]” Cunningham v. California, 549 U.S. 270, 

281 (2007). Apprendi recounted their historical context, 

noting that early on in our history, judges had “very little 

explicit discretion in sentencing.” 530 U.S. at 479. Any 

“circumstances mandating a particular punishment” had to be 

charged to the jury in the indictment; there was “[no] 

distinction between an „element‟ of a felony offense and a 

„sentencing factor[.]‟” Id. at 478, 480. In the 19th century, 

this idea began to shift, “from statutes providing fixed-term 

sentences to those providing judges discretion within a 

permissible range[.]” Id. at 481. Crucially, this shift “has 

been regularly accompanied by the qualification that [such 

judicial] discretion was bound by the range of sentencing 

options prescribed by the legislature.” Id.

By the late 20th century, the Supreme Court began to 

address state laws that increased a defendant‟s punishment 

based on factors found at sentencing, rather than based on 

factors found at trial. In McMillan v. Pennsylvania, 477 U.S. 

79 (1986), the Supreme Court, “for the first time, coined the 

term „sentencing factor‟ to refer to a fact that was not found 

by a jury but that could affect the sentence imposed by the 

judge.” Apprendi, 530 U.S. at 485 (construing McMillan). 

Consistent with longstanding constitutional principles, 

McMillan held that a “sentencing factor” must at times be 

found by a jury because “(1) constitutional limits exist to 

States‟ authority to define away facts necessary to constitute a 

criminal offense, and (2) . . . a state scheme that keeps from 
14

the jury facts that „expos[e] [defendants] to greater or

additional punishment,‟ may raise serious constitutional 

concern[s].” Apprendi, 530 U.S. at 486 (quoting McMillan, 

477 U.S. at 85-88) (internal citations omitted).

A decade later, the Supreme Court decided

Almendarez-Torres v. United States, 523 U.S. 224, 242-47 

(1998), a case in which the defendant was convicted for his 

presence in the United States after being deported, a violation 

which normally carried a maximum of two years‟

imprisonment. 523 U.S. at 227. Prior to his initial

deportation, Almendarez-Torres was convicted of three 

aggravated felonies, and according to the sentencing statute, 

where the original deportation had occurred subsequent to an 

aggravated felony, the court could impose a maximum 

sentence of up to twenty years‟ imprisonment. Id. at 227, 

229. Almendarez-Torres argued that he could not be subject 

to more than two years‟ imprisonment, because his indictment 

had not mentioned his earlier aggravated felony convictions. 

Id. at 227. Importantly, there was no contention that the 

defendant had not been convicted of the three aggravated 

felonies, but only that the fact of his prior convictions should 

have been included in the indictment and charged to the jury. 

Id. Thus, Almendarez-Torres had earlier been convicted of 

the facts necessary for the sentencing enhancement, “pursuant 

to proceedings with substantial procedural safeguards of their 

own[.]” Apprendi, 530 U.S. at 488. In other words, by 

judicially finding that Almendarez-Torres‟s three prior 

convictions existed, the sentencing judge did not “change a 

pre-existing definition of a well-established crime, nor . . . 

„evade‟ the Constitution, either by „presuming‟ guilt or 
15

„restructuring‟ the elements of an offense.” AlmendarezTorres, 523 U.S. at 246.

The Supreme Court found that the fact of AlmendarezTorres‟s prior convictions did not have to be charged to the 

jury because the constitutional limitations articulated in 

McMillan did not apply.5 Almendarez-Torres, 523 U.S. at 

228, 242-43. As the Supreme Court later explained in 

Apprendi: “[b]oth the certainty that procedural safeguards 

attached to any „fact‟ of prior conviction, and the reality that 

Almendarez-Torres did not challenge the accuracy of that 

„fact‟ in his case, mitigated the due process and Sixth 

Amendment concerns otherwise implicated in allowing a 

judge to determine a „fact‟ increasing punishment beyond the 

maximum of the statutory range.” 530 U.S. at 488.

A year after Almendarez-Torres, the Supreme Court 

explained that Almendarez-Torres‟s recidivism exception was 

permitted because “a prior conviction must itself have been 

established through procedures satisfying the fair notice, 

reasonable doubt, and jury trial guarantees.” Jones, 526 U.S. 

at 249. In Jones, the trial court gave the defendant a sentence 

beyond the statutory maximum based on a judicial finding 

 

5

Judge Greenaway asserts that the Almendarez-Torres

rule “remains . . . amorphous and undefined[.]” Dissenting 

Op. of Greenaway, J. at Part III. However, as explained 

above, even in Almendarez-Torres itself, the Supreme Court 

did not allow carte blanche factfinding related to recidivism. 

523 U.S. at 242-46. Thus, the holding of Almendarez-Torres

has never been as broad as Judge Greenaway suggests.
16

that the carjacking offense he was convicted of involved 

“serious bodily injury.” Id. at 230-31. The Supreme Court 

found that the carjacking statute required a jury, rather than a 

judge, to determine whether the crime involved “serious 

bodily injury,” citing “grave” constitutional questions that 

would arise if the statute were to be interpreted otherwise. Id.

at 231, 239. Although Jones did not actually reach the 

constitutional issue, its explanation of Almendarez-Torres and 

its constitutional discussion were significant, especially given 

that Apprendi explicitly “confirm[ed] the opinion . . . 

expressed in Jones[,]” 530 U.S. at 490, that “under the Due 

Process Clause of the Fifth Amendment and the notice and 

jury trial guarantees of the Sixth Amendment, any fact (other 

than prior conviction) that increases the maximum penalty for 

a crime must be charged in an indictment, submitted to a jury, 

and proven beyond a reasonable doubt.” 530 U.S. at 476 

(quoting Jones, 526 U.S. at 243 n.6).

Against this historical backdrop, the Supreme Court 

decided Apprendi, where a defendant pled guilty to unlawful 

possession of a weapon, a second-degree offense punishable 

by up to ten years‟ imprisonment. Despite the defendant‟s 

plea and conviction for a second-degree offense, the trial 

court sentenced him to twelve years‟ imprisonment, a 

“punishment identical to that . . . provide[d] for crimes of the 

first degree,” based on a judicial finding pursuant to a New 

Jersey hate crime sentencing enhancement, “that the 

defendant‟s „purpose‟ for unlawfully possessing the weapon 

was „to intimidate‟ his victim on the basis of a particular 

characteristic the victim possessed.” 530 U.S. at 468-69, 471, 

491. The Apprendi Court began by stating that “[a]t stake in 
17

this case are constitutional protections of surpassing 

importance: the proscription of any deprivation of liberty 

without „due process of law,‟ Amdt. 14, and the guarantee 

that „[i]n all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial, by an impartial jury[.]‟” 

530 U.S. at 476-77. It then discussed several centuries of 

precedent, summarizing that a criminal defendant may not be 

“expose[d] . . . to a penalty exceeding the maximum he would 

receive if punished according to the facts reflected in the jury 

verdict alone.” Id. at 482-83.

Apprendi explained that Almendarez-Torres was “at 

best an exceptional departure from . . . historic practice” and a 

“limited” and “narrow” exception based on “unique facts[.]” 

Id. at 487, 488 n.14, 489-90. Twice in its opinion, the 

Apprendi Court emphasized that Almendarez-Torres was 

different because “Almendarez-Torres had admitted the three 

earlier convictions for aggravated felonies[,]” and those prior 

convictions “had been entered pursuant to proceedings with 

substantial procedural safeguards of their own[.]” Id. at 488; 

see also id. (reiterating the same points). Thus, “no question 

concerning the right to a jury trial or the standard of proof 

that would apply to a contested issue of fact was before the 

Court.” Id.

Having explained the historical principles and the 

Almendarez-Torres exception, the Apprendi Court 

summarized the law as follows, in the now-famous Apprendi

rule:

“[O]ur reexamination of our cases in this area, 

and of the history upon which they rely, 
18

confirms the opinion that we expressed in 

Jones. Other than the fact of a prior conviction, 

any fact that increases the penalty for a crime 

beyond the prescribed statutory maximum must 

be submitted to a jury, and proved beyond a 

reasonable doubt. With that exception, we 

endorse the statement of the rule set forth in the 

concurring opinions in that case: „[I]t is 

unconstitutional for a legislature to remove 

from the jury the assessment of facts that 

increase the prescribed range of penalties to 

which a criminal defendant is exposed. It is 

equally clear that such facts must be established 

by proof beyond a reasonable doubt.‟”

Id. at 490 (quoting Jones, 526 U.S. at 252-53 (Stevens, J., 

concurring); citing id. at 253 (Scalia, J., concurring)). 

Applying this newly articulated rule, the Apprendi court ruled

that it was unconstitutional for the sentencing judge to 

increase Apprendi‟s sentence beyond the statutory maximum 

based on a judicial finding that the crime to which Apprendi 

pled guilty constituted a hate crime. In doing so, it compared 

Almendarez-Torres, reiterating that: “there is a vast 

difference between accepting the validity of a prior judgment 

of conviction entered in a proceeding in which the defendant 

had the right to a jury trial and the right to require the 

prosecutor to prove guilt beyond a reasonable doubt, and 

allowing the judge to find the required fact under a lesser 

standard of proof.” Apprendi, 530 U.S. at 496.
19

IV.

Based on these constitutional principles, Garrus 

requests habeas relief under AEDPA. Specifically, he claims 

that the trial court violated his Sixth Amendment and Due 

Process rights by finding that his prior 1997 conviction 

constituted a “crime of violence” and argues that the state 

appellate court decisions affirming that finding were 

“contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the 

Supreme Court of the United States” in Apprendi. See 28 

U.S.C. § 2254(d)(1).

AEDPA “„imposes a highly deferential standard for 

evaluating state-court rulings‟ and „demands that state-court 

decisions be given the benefit of the doubt.‟” Felkner v. 

Jackson, 131 S. Ct. 1305, 1307 (2011) (quoting Renico v. 

Lett, 130 S. Ct. 1855, 1862 (2010)). We must use habeas 

corpus as a “„guard against extreme malfunctions in the state 

criminal justice systems,‟ not a substitute for ordinary error 

correction through appeal.” Harrington v. Richter, 131 S. Ct. 

770, 786 (2011). Thus, we may grant habeas relief under 

AEDPA only if the state court‟s adjudication of a claim 

“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[,]” 

or “resulted in a decision that was based on an unreasonable 
20

determination of the facts in light of the evidence presented in 

the State court proceeding.”6 28 U.S.C. § 2254(d).

Because the state court identified and relied on the 

correct governing legal rule established by Apprendi, we must 

apply AEDPA‟s “unreasonable application” standard.7See

Williams v. Taylor, 529 U.S. 362, 407-08 (2000). Under 

AEDPA‟s “unreasonable application” standard, we “may not 

issue the writ [if we merely] conclude[] . . . that the relevant 

state-court decision applied clearly established federal law 

erroneously or incorrectly.” Id. at 411. “Rather, that 

application must be „objectively unreasonable.‟” Renico, 130 

S. Ct. at 1862 (quoting Williams, 529 U.S. at 409). In other 

 

6

Judge Hardiman computes the frequent rate at which 

the Supreme Court has reversed habeas decisions of the 

Courts of Appeals based on failure to afford appropriate 

deference to state court judgments. Dissenting Op. of 

Hardiman, J. at Part I. Such statistics cannot dispose of the 

instant case, especially in light of the Supreme Court‟s recent 

reminder that “[j]udges must be vigilant and independent in 

reviewing petitions for the writ[.]” Harrington, 131 S. Ct. at 

780 (emphasis added).

7 We consider the last state court adjudication on the 

merits, Greene, 132 S. Ct. at 44-45, which was the 

Pennsylvania Superior Court‟s PCRA decision, found at 

Commonwealth v. Garrus, No. 961 EDA 2005 (Pa. Super. Ct. 

Apr. 18, 2006). See Greene, 132 S. Ct. at 43-45 

(Pennsylvania Supreme Court‟s denial of petition for appeal 

is not considered an adjudication on the merits).
21

words, we must consider whether the state court‟s 

“determination can[] be reconciled with any reasonable 

application of the controlling standard[.]” Panetti v. 

Quarterman, 551 U.S. 930, 953 (2007) (emphasis added). 

Garrus must show that “the state court‟s ruling . . . was so 

lacking in justification that there was an error well understood 

and comprehended in existing law beyond any possibility for 

fairminded disagreement.” Harrington, 131 S. Ct. at 786-87.

This case turns on the meaning of the “unreasonable 

application” standard. Garrus argues that the state court 

unreasonably applied Apprendi and its prior conviction 

exception by permitting the trial court to determine at 

sentencing that Garrus‟s prior 1997 conviction for 

burglarizing an unoccupied building (second-degree burglary) 

actually involved burglarizing an occupied building. In 

response, the Commonwealth argues that Garrus cannot meet 

his burden of proving that the state court‟s application of 

Apprendi was objectively unreasonable because neither 

Apprendi nor any case since has explicitly defined the scope 

of “the fact of a prior conviction” exception. However, our 

determination is not dependent on a fully delineated 

interpretation or application of “the fact of a prior conviction” 

exception, only a reasonable one. Panetti, 551 U.S. at 953

(“That the standard is stated in general terms does not mean 

the application was reasonable.”). The AEDPA standard is 

not so “myopic” nor “constrained” that it requires the full 

scope of all clearly established laws to be precisely defined. 

Jamison v. Klem, 544 F.3d 266, 273 (3d Cir. 2008); see also 

id. (noting that if a Supreme Court decision must precisely 

resolve a given issue under AEDPA, only the “contrary to” 
22

standard would exist, and the “unreasonable application” 

standard would be rendered meaningless). Rather, AEDPA

requires that if a clearly established rule or principle is stated, 

however general, state courts must adhere to a reasonable 

application of that rule.8 Panetti, 551 U.S. at 953.

 

8 Our dissenting colleagues appear to agree that the 

focus of our inquiry should be on the “unreasonable 

application” prong of AEDPA. Dissenting Op. of 

Greenaway, J. at Part I; Dissenting Op. of Hardiman, J. at 

Part I. Judge Greenaway also concedes that “Apprendi is at 

the forefront of our inquiry,” and that Apprendi limited and 

narrowed Almendarez-Torres. Dissenting Op. of Greenaway, 

J. at Part II. At the same time, Judges Greenaway and 

Hardiman fault us for not identifying a case “expounding on 

the contours of the amorphous prior-conviction exception.” 

Id. at ¶ 2; Dissenting Op. of Hardiman, J. at Part I.

AEDPA, however, does not require clearly established 

federal law to be further elucidated by additional precedent 

before an application of that law may be unreasonable. See 

Panetti, 551 U.S. at 953 (“AEDPA does not „require state and 

federal courts to wait for some nearly identical factual pattern 

before a legal rule must be applied.‟” (quoting Carey v. 

Musladin, 549 U.S. 70, 81 (2006))). Instead, under AEDPA, 

“even a general standard may be applied in an unreasonable 

manner.” Id. (citing Williams, 529 U.S. 362). Thus, our task 

is to review the Pennsylvania Superior Court‟s application of 

Apprendi, the clearly established federal law we do have, to 

Garrus‟s claim.
23

Apprendi clearly requires that any fact “other than the 

fact of a prior conviction” must be submitted to a jury if it 

will increase the penalty beyond the statutory maximum. 530 

U.S. at 490. Under AEDPA there is undoubtedly a broad 

spectrum of reasonable applications of this rule, but a fact that 

actually defies and contradicts a prior conviction falls 

squarely outside the spectrum of reasonable interpretations. 

Cf. Wilson v. Knowles, 638 F.3d 1213, 1215 (9th Cir. 2011) 

(“Courts may reasonably disagree about some of the precise 

boundaries of the exception. . . . But that does not mean that 

Apprendi is amorphous. . . . The judge‟s fact-finding seven 

years after the 1993 conviction extended beyond any 

reasonable interpretation of the prior conviction exception.”). 

We can find no reasonable basis for applying Apprendi to 

allow judicial finding of a fact that is inconsistent with and

contradicts the facts established through constitutional 

procedures. The very reason for the exception is to recognize 

facts that have already “been established through procedures 

satisfying the fair notice, reasonable doubt, and jury trial 

guarantees.” Jones, 526 U.S. at 249. The phrase “fact of a 

 

By contrast, the rationale of our dissenting colleagues 

would render the Apprendi rule meaningless. It would, in 

effect, shift this case to the “contrary to” prong of AEDPA, 

preserving the “unreasonable application” prong of AEDPA 

in name only. Such an analysis is particularly inappropriate 

here because the Pennsylvania Superior Court correctly 

“identified controlling Supreme Court precedent.” Dissenting 

Op. of Greenaway, J. at Part I (citing Williams, 529 U.S. at 

406).
24

prior conviction” might be reasonably construed to allow 

judicial factfinding of a fact underlying a prior conviction or a 

fact consistent with a prior conviction. However, absent case 

law authorizing some type of paradoxical interpretation, “fact 

of a prior conviction” cannot reasonably be interpreted to 

allow judicial factfinding of a fact contradicting a prior 

conviction or a fact inconsistent with a prior conviction.

9

 

9

Judge Greenaway faults our opinion for an alleged 

internal inconsistency: we rely on Apprendi, a case 

concerned with the Sixth Amendment right to a jury trial, to 

require the sentencing judge to determine that Garrus‟s prior 

conviction was not a crime of violence. Dissenting Op. of 

Greenaway, J. at Part III. But Apprendi does not prohibit a 

judge from finding facts that do not increase a sentence 

beyond the statutory maximum. Rather, Apprendi only

prohibits judicial factfinding that increases a sentence beyond 

the statutory maximum. 530 U.S. at 490.
25

No existing precedent so much as hints that a 

paradoxical interpretation of Apprendi might be reasonable.10 

Thus, under Apprendi, it was objectively unreasonable for the 

state court to allow Garrus to be sentenced beyond the 

statutory maximum based on a mere allegation that actually 

defied and contradicted his prior conviction. The 

Commonwealth proffers several cases, which it argues could 

have supported the state court‟s decision to apply the prior 

conviction exception in Garrus‟s case, but its attempts fall 

flat.

Despite the Commonwealth‟s attempts to paint it as 

such, Almendarez-Torres is not a panacea allowing 

recidivism-related judicial factfinding, or supporting the state 

court‟s determination that Apprendi‟s prior conviction 

exception permitted the sentencing judge to find that Garrus 

had burglarized an occupied building despite his plea to the 

contrary. Apprendi cited Almendarez-Torres as the “limited” 

 

10 Judge Greenaway counters that “no Supreme Court 

precedent suggests that the majority‟s interpretation is the 

only reasonable interpretation.” Dissenting Op. of 

Greenaway, J. at Part III. This argument implies that Judge 

Greenaway would defer to an objectively unreasonable state 

court judgment as long as there were more than one possible 

reasonable application of a Supreme Court precedent. While 

AEDPA mandates a highly deferential standard, it does not 

go as far as Judge Greenaway suggests. Instead, the test is 

whether the state court judgment “can[] be reconciled with 

any reasonable application of the controlling standard[.]” 

Panetti, 551 U.S. at 953.
26

and “narrow” exception to the Apprendi rule, 530 U.S. at 488 

n.14, 489-90, and explained that the constitutionality of that 

exception rested on (1) “the certainty that procedural 

safeguards attached to any „fact‟ of prior conviction,” and 

(2) “the reality that Almendarez-Torres did not challenge the 

accuracy of that „fact‟ in his case[.]” Id. at 488. In fact, 

Apprendi emphasized these factors at least twice, and it is 

important to note that neither factor is present in this case. 

Regarding the first factor, the only “fact” judicially found by 

the sentencing court in Almendarez-Torres was the actual fact 

that the defendant was convicted, and that “fact” had 

previously been established through a conviction process 

applying procedural safeguards. In contrast, Garrus was only 

accused of – not convicted of – the violent crime of 

burglarizing an occupied building (which would have been 

first-degree burglary). More importantly, Garrus only pled 

guilty and was convicted of burglarizing an unoccupied 

building (second-degree burglary). Thus, unlike the 

Almendarez-Torres defendant, whose sentence was enhanced 

based on actual prior convictions, Garrus‟s sentence was 

enhanced beyond the statutory maximum without a basis in

any jury determination or plea admission. Because the “fact” 

of which Garrus was accused was never found by a jury nor 

was it an element of the crime for which he pled guilty, no 

procedural safeguards attached to the finding of this “fact.”

As to the second factor, Garrus makes clear in his 

reply brief that, unlike Almendarez-Torres, he did not 

concede or admit the fact at issue. In fact, at the sentencing 

hearing, he questioned the judicial finding that his 1997 

conviction was a “crime of violence.” (Sentencing Hr‟g Tr.
27

28, May 8, 2001, see App. at 177a.) A defendant waives his 

Apprendi rights only if he “either stipulates to the relevant 

facts or consents to judicial factfinding.” Blakely v. 

Washington, 542 U.S. 296, 310 (2004) (citing Apprendi, 530 

U.S. at 488; Duncan v. Louisiana, 391 U.S. 145, 158 (1968)). 

Thus, neither of the two factors that allowed AlmendarezTorres to stand as a narrow exception to Apprendi apply in 

this case. As Apprendi explained, “there is a vast difference 

between accepting the validity of a prior judgment of 

conviction entered in a proceeding in which the defendant had 

the right to a jury trial and the right to require the prosecutor 

to prove guilt beyond a reasonable doubt,” as occurred in 

Almendarez-Torres, and “allowing the judge to find the 

required fact under a lesser standard of proof[,]” as occurred 

in both Apprendi and here in Garrus‟s case. See 530 U.S. at 

496. Therefore, it was objectively unreasonable for the state 

court to find that Almendarez-Torres authorized the 

application of Apprendi‟s prior conviction exception in this 

case.

Had Garrus been convicted of first-degree burglary in 

1997 (based on a jury finding or plea establishing that he

burglarized a building that was occupied and adapted for 

overnight accommodation), we do not doubt that under 

Almendarez-Torres, the court sentencing him for his later 

manslaughter conviction could have taken note of the earlier 

first-degree burglary conviction and held that it qualified as a 

crime of violence under Pennsylvania‟s “three strikes” law. 

However, Garrus was convicted of second-degree burglary.

Given the highly deferential AEDPA standard, it is 

even possible that if Pennsylvania merely had a generic 
28

burglary statute that did not differentiate between burglarizing 

an occupied or unoccupied building, a reasonable application 

of the “fact of a prior conviction” exception might have 

permitted the judge to look at facts underlying the prior 

burglary conviction to determine whether Garrus was 

convicted of burglarizing an occupied building.11 See, e.g., 

United States v. Santiago, 268 F.3d 151, 153, 157 (2d Cir. 

2001) (finding that Apprendi allows a sentencing judge to 

find “not only the mere fact of previous convictions but 

[certain] other related issues as well”);12 cf. Taylor v. United 

 

11 We do not make any determination regarding this 

hypothetical issue; rather, we raise it to highlight the narrow 

scope of the issue before us today.

12 The Dissents urge us to follow Santiago. Dissenting 

Op. of Greenaway, J. at Part III; Dissenting Op. of Hardiman, 

J. at Part II. There, the issue was whether, under the federal 

recidivism statute, Apprendi required a jury to find beyond a 

reasonable doubt that the defendant‟s three predicate 

convictions were committed on separate occasions. Santiago, 

268 F.3d at 152-53. Then-Judge Sotomayor ruled that 

Apprendi did not prohibit sentencing judges from 

“determin[ing] the „who, what, when, and where‟ of a prior 

conviction.” Id. at 156. But the Second Circuit declined to 

extend this exception to the Apprendi rule “to all issues 

related to recidivism[.]” Id.
29

States, 495 U.S. 575, 602 (1990) (holding that under a federal 

“three strikes” law, the sentencing judge may only find facts 

that were necessary to the prior conviction). However, the 

sentencing judge in this case looked at the previous 

conviction for burglarizing an unoccupied building, and

nonetheless found facts supporting exactly the opposite 

proposition: that the building had been occupied. Because 

Garrus was convicted of burglarizing an unoccupied building, 

the finding that the building was occupied was simply not a 

“fact of a prior conviction.” The finding that the building was 

occupied could be viewed as a fact of a prior accusation of 

first-degree burglary, or as a fact contradicting a prior 

 

Santiago is not controlling here. As an initial matter, 

Santiago is not “existing precedent” for AEDPA purposes. 

See Harrington, 131 S. Ct. at 785 (“Federal habeas relief may 

not be granted for claims subject to [28 U.S.C. § 2254(d)(1)] 

unless it is shown that the earlier state court‟s decision . . . 

involved an unreasonable application” of “federal law then 

clearly established in the holdings of the Supreme Court.”) 

(citations and internal quotations omitted). More importantly, 

permitting a sentencing judge to determine facts related to the 

“who, what, when, and where” of a prior conviction is 

altogether different from allowing judicial factfinding that 

completely contradicts a prior conviction. Here, the 

sentencing court found as a “fact” related to Garrus‟s prior 

conviction an allegation that was contained in a police report 

and victim statement and that was irreconcilable with his plea 

agreement. The Second Circuit‟s reasoning in Santiago

cannot be stretched to these facts.
30

conviction for second-degree burglary. Either way, it cannot 

be reasonably interpreted as a “fact of a prior conviction.”

We likewise disagree with the Commonwealth‟s 

convoluted argument that Shepard somehow supports the 

state court‟s determination because it was decided on a 

statutory basis rather than a constitutional one. As a threshold 

matter, we note that Garrus contends that Shepard supports 

him rather than the Commonwealth. However, because 

Shepard‟s holding was limited to a federal statute that is 

inapplicable here and its constitutional discussion was mere 

dicta, Garrus cannot rely on it for relief. See Carey, 549 U.S. 

at 74 (“„[C]learly established Federal law‟ in § 2254(d)(1) 

„refers to the holdings, as opposed to the dicta, of th[e] 

[Supreme] Court‟s decisions as of the time of the relevant 

state-court decision.‟” (quoting Williams, 529 U.S. at 412)).13 

Nevertheless, we will address the Commonwealth‟s argument 

that Shepard somehow made the state court‟s application of 

Apprendi reasonable. Cf. Price v. Vincent, 538 U.S. 634, 643 

and n.2 (2003) (even cases that are not binding might be 

relevant to the consideration of whether a state court decision 

is objectively unreasonable).

Shepard involved a sentencing enhancement pursuant 

to 18 U.S.C. § 924, which applies where a defendant has been 

 

13

 We need not reach the issue of whether Teague‟s 

retroactivity inquiry also precludes Garrus from relying on 

Shepard for relief. See Horn v. Banks, 536 U.S. 266, 272 

(2002) (noting that Teague‟s retroactivity inquiry remains 

relevant post-AEDPA).
31

previously convicted of violent felonies, including burglaries 

of buildings. 544 U.S. at 15-16. Shepard had previously 

been convicted of burglary four times, but he was convicted 

of burglarizing structures under Massachusetts law, and thus 

it was unclear from his convictions whether he had 

burglarized buildings or some other types of structures such 

as vehicles. Id. at 16-17; see also id. at 31 (O‟Connor, J., 

dissenting). The Supreme Court held, based on principles of 

statutory interpretation, that the sentencing court was not 

permitted to look at police reports in order to determine 

whether the structures the defendant had burglarized were 

buildings. Id. at 16-22. It ruled that the sentencing court was 

“limited to the terms of the charging document, the terms of a 

plea agreement or [the terms of the] transcript of [the plea] 

colloquy . . . or to some comparable judicial record of this 

information.” Id. at 26.

The Commonwealth suggests that the state court could 

have gleaned support from Shepard by finding that because 

Shepard‟s holding was not constitutionally based, the use of 

police reports for judicial factfinding was constitutionally 

permissible. However such non sequitur reasoning is 

objectively unreasonable. The Shepard Court did nothing 

more than employ the classic doctrine of constitutional 

avoidance by deciding the case on a statutory basis. It is 

entirely unreasonable to read constitutional avoidance as 

indicative that a practice is constitutionally permissible. In 

fact, if anything can be read into the Shepard Court‟s 

discussion of the Constitution in dicta, it is that the majority 

of the Court expressed grave constitutional concerns: four 

justices cited concerns that looking at police reports 
32

underlying a prior conviction posed “serious risks of 

unconstitutionality” under Apprendi, and Justice Thomas 

would have gone further and found the entire “fact of a prior 

conviction” exception to be unconstitutional. See id. at 25 

(plurality); id. at 26-28 (Thomas, J., concurring in part and 

concurring in the judgment).

Even assuming for purposes of this analysis that the 

Supreme Court expressed constitutional uncertainty about 

Apprendi‟s application in Shepard, it does not follow that 

Apprendi‟s application here is unclear. In fact, nothing in 

Shepard supports the Commonwealth‟s argument that “the 

fact of a prior conviction” might be reasonably construed to 

mean a fact contradicting a prior conviction because Shepard

simply did not involve a fact contradicting a prior conviction. 

Crucially, Shepard had four times been convicted of 

burglarizing structures, and the police reports did not 

contradict this fact. Rather, the police reports supported the 

conviction for burglary of structures, and merely explained 

specifically that the types of structures involved were 

buildings. As the plurality noted, the factual allegations in 

the Shepard police reports might have been permitted by 

Apprendi as “a fact about a prior conviction[.]” Shepard, 544 

U.S. at 25 (plurality) (emphasis added). The Shepard 

dissent‟s argument also highlights this distinction by stating 

that sentencing judges should be able to refer to “internally 

consistent parts of the record from the earlier conviction.” Id. 

at 31 (O‟Connor, J., dissenting). In contrast, the police report 

alleging that Garrus burglarized an occupied building cannot 

reasonably be interpreted as a fact consistent with or a fact 
33

about Garrus‟s conviction for burglarizing an unoccupied 

building.

Rather than supporting the Commonwealth‟s 

argument, Shepard demonstrates that even judicial factfinding 

that is consistent with a prior conviction might be 

unconstitutional. By no means does it support the proposition 

that Apprendi‟s “fact of a prior conviction” exception might 

be reasonably interpreted to allow judicial factfinding that 

contradicts a prior conviction.

Finally, the Commonwealth strains to argue that some 

Circuit court cases show that the state court‟s application of 

Apprendi was reasonable. See Kessee v. Mendoza-Powers, 

574 F.3d 675 (9th Cir. 2009); United States v. Smith, 474 

F.3d 888, 892 (6th Cir. 2007), abrogation on other grounds 

recognized by United States v. Johnson, 640 F.3d 195, 205 

(6th Cir. 2011); Boyd v. Newland, 467 F.3d 1139 (9th Cir. 

2006); United States v. Hollingsworth, 414 F.3d 621 (6th Cir. 

2005); United States v. Williams, 410 F.3d 397 (7th Cir. 

2005); United States v. Camacho-Ibarquen, 410 F.3d 1307 

(11th Cir. 2005); United States v. Kempis-Bonola, 287 F.3d 

699 (8th Cir. 2002); Santiago, 268 F.3d at 151. We disagree; 

none of these cases demonstrates that it was reasonable for 

the state court to apply Apprendi to sentence a defendant 

beyond the statutory maximum based on a fact contradicting a 
34

prior conviction.14 In short, none of these cases involves a 

judicial finding of fact that contradicted the defendant‟s prior 

 

14 Contrary to Judge Hardiman‟s argument, there is no 

circuit split on this issue, and our decision here does not 

create one. Dissenting Op. of Hardiman, J. at Part II. Neither 

Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010), nor United 

States v. Davis, 260 F.3d 965 (8th Cir. 2001), addresses the 

question in this case. For this reason, we express no view on 

whether these cases were decided correctly, nor do we 

question the fairmindedness of those jurists.

In Portalatin, the petitioners were sentenced under 

New York‟s recidivism statute. 624 F.3d at 72. Pursuant to 

that law, a defendant is subject to an increased sentencing 

range as a repeat offender “based solely on whether [he] [has] 

two prior convictions.” Id. at 88 (quoting People v. Rivera, 

833 N.E.2d 194, 198 (N.Y. 2005) (original emphasis)). After 

a sentencing court determines that a defendant is a repeat 

offender and that an increased sentencing range applies, it 

considers “the history and character of the defendant, and the 

nature and circumstances of his crime,” before selecting a 

sentence within the increased range. Id. at 90. In Portalatin, 

the Second Circuit first agreed with the New York Court of 

Appeals that if the recidivism statute were construed “to 

require the court to find additional facts about the defendant 

before imposing a recidivism sentence, the statute[] would 

violate Apprendi.” Id. at 89 (quoting Rivera, 833 N.E.2d at 

198) (emphasis added). But the Portalatin court also 

concluded that a sentencing court could consider subsidiary 

facts about a defendant‟s prior convictions before imposing a 
35

 

repeat offender sentence without violating Apprendi. Id. at 

92. Nonetheless, the important point here is that the Second 

Circuit did not discuss whether the sentencing court could 

find or consider underlying facts that contradict an offender‟s 

prior conviction. The failure to address this subject is 

unsurprising as the Portalatin petitioners did not dispute their 

underlying convictions. Id. at 75-78.

Similarly, in Davis, the appellant, sentenced as a repeat 

offender under federal law, argued that due process required a 

jury to conclude beyond a reasonable doubt that his prior 

convictions were qualifying felonies under the recidivism 

statute. 260 F.3d at 967-69. The Eighth Circuit held only 

that, under Apprendi and Almendarez-Torres, the “fact of 

prior conviction includes . . . a determination of whether a 

conviction is one of the enumerated types qualifying for the 

sentence enhancement under [18 U.S.C. § 3559].” Id. at 969 

(citation omitted). Conspicuously absent from the Davis

decision is any indication that the Eighth Circuit would have 

held it reasonable for the state court, in making its 

determination, to find facts precluded by the prior conviction.
36

conviction.15 In fact, at least one of the cases did not even 

involve judicial factfinding that increased the penalty beyond 

 

15 Only Garrus cites to a case that is close to being on 

point: Wilson, 638 F.3d 1213. Wilson was convicted by a 

jury of driving under the influence with a prior felony 

conviction. Id. at 1214. At sentencing, the judge found that 

Wilson‟s conviction was his third strike under California‟s 

“three strikes” law, and enhanced his sentence accordingly. 

In order to find that one of the previous convictions counted 

as a strike under California‟s “three strikes” law, the 

sentencing judge had to make several findings of fact that 

were not necessary for the conviction. Id. at 1215. The issue 

for the Ninth Circuit was whether such judicial findings “fell 

within the prior conviction exception.” Id. The Ninth Circuit 

started by noting that “[c]ourts may reasonably disagree about 

some of the precise boundaries of the exception . . . [b]ut that 

does not mean that Apprendi is amorphous.” Id. It went on 

to find that the judicially found facts – such as the extent of 

the victim‟s injuries – were disputed and not found by a jury 

or in any way necessary to the conviction. Id. “The judge . . . 

speculated as to how a [previous] jury . . . might have 

evaluated the evidence if the evidence had been offered and if 

a jury had been impaneled to evaluate it.” Id. Thus, the 

judge‟s factfinding “extended beyond any reasonable 

interpretation of the prior conviction exception.” Id.
37

the prescribed statutory maximum. See Smith, 474 F.3d at 

892.

Upon a thorough and circumspect examination of the 

potential arguments or theories that “supported or . . . could 

have supported, the state court‟s decision[,]” we believe that 

no “fair-minded jurist could disagree that those arguments or 

 

Just as in Wilson, Garrus‟s sentencing judge made 

judicial findings of fact that were not necessary to his prior 

conviction, and then speculated as to how a jury might have 

evaluated the evidence had it been offered, or whether Garrus 

might have admitted to the evidence at his plea hearing. The 

Commonwealth tries to distinguish Wilson on the basis that 

the facts here in Garrus‟s case are “less controversial” than 

the judicially found facts in Wilson, but we find such a 

distinction unavailing; regardless of how controversial the 

facts were in Wilson, the determinative issue was that such

facts were not necessary to the verdict, and were never 

determined by a jury nor pled to by the defendant. Id. at 

1215-16. If anything, Garrus‟s case is stronger than Wilson‟s 

because in Garrus‟s case the facts actually contradicted his 

prior conviction, whereas in Wilson‟s case, the facts were 

simply not necessary to the prior conviction.
38

theories are inconsistent with the holding in” Apprendi.

16

 

Harrington, 131 S. Ct. at 786; see also Panetti, 551 U.S. at 

953 (The “record . . . cannot, under any reasonable 

interpretation of the controlling legal standard, support [the 

state‟s] legal ruling.”). In fact, no fairminded jurist could 

disagree that the state court‟s paradoxical interpretation of the 

prior conviction exception renders an absurd result under 

Apprendi, allowing a judge that applies the “three strikes” 

statute to make the very factual finding that an earlier judge 

would have been prohibited from making. As we noted 

above, Apprendi pled guilty to unlawful possession of a 

weapon, a second-degree offense punishable by a maximum 

of ten years‟ imprisonment, but the judge increased the 

sentence beyond the statutory maximum based on the finding 

of an additional factor, effectively imposing punishment on 

the defendant for a first-degree offense. Apprendi, 530 U.S. 

 

16 Judge Greenaway accuses us of wasting “pages 

examining Supreme Court precedent” without “grappl[ing] 

with precedent that undermines” our position. Dissenting Op. 

of Greenaway, J. at Part II. We agree that it would have been 

simpler for us to prove the reasonableness of our own 

interpretation of Apprendi. But we recognize that under 

AEDPA, we “must determine what arguments or theories 

supported or . . . could have supported the state court‟s 

decision; and then [we] must ask whether it is possible 

fairminded jurists could disagree that those arguments or 

theories are inconsistent with the holding in a prior decision 

of [the Supreme] Court.” Harrington, 131 S. Ct. at 786. Our 

analysis comports with this standard.
39

at 491. Thus, under Apprendi, it is clear that a judge applying 

the initial sentence for second-degree burglary (under 

Pennsylvania law) cannot enhance the sentence beyond the 

statutory maximum based on the finding that the defendant 

burglarized an occupied building, effectively imposing

punishment on the defendant for a first-degree offense. The 

Commonwealth today would have us believe that Apprendi

may be reasonably applied to allow a later judge sentencing a 

defendant to look back at the defendant‟s initial conviction 

and make the factual finding that the initial sentencing judge 

was prohibited from making. Apprendi cannot be reasonably 

construed or applied to allow this absurd result.

Accordingly, we conclude that it was objectively 

unreasonable for the state court to apply Apprendi‟s prior 

conviction exception to allow judicial factfinding based on an 

allegation that actually defied and contradicted the elements 

of the prior conviction. The rule of Apprendi and the prior 

conviction exception simply cannot be reconciled with the 

state court decision. In sum, Garrus has shown that “the state 

court‟s ruling . . . was so lacking in justification that there was 

an error well understood and comprehended in existing law 

beyond any possibility for fairminded disagreement.” 

Harrington, 131 S. Ct. at 786-87.

We recognize the rarity of today‟s determination; 

seldom does a state court‟s decision fail to withstand 

AEDPA‟s highly deferential standard. However, our 

conclusion that the state court unreasonably applied clearly 

established law by relying on a narrow and inapplicable 

exception is not unprecedented. See Abdul-Kabir v. 

Quarterman, 550 U.S. 233, 258 (2007) (finding that the state 
40

court unreasonably applied clearly established law by relying 

on an inapplicable “narrow holding” and “ignoring the 

fundamental principles established by [the Supreme Court‟s] 

most relevant precedents”); Williams, 529 U.S. at 397 

(finding that the state court unreasonably applied clearly 

established law by relying on an “inapplicable” exception to 

the law clearly established by Strickland). AEDPA severely 

constrained our ability to review state court decisions, but it 

did not render our review void or meaningless. See, e.g.,

Harrington, 131 S. Ct. at 786 (“§ 2254(d) stops short of 

imposing a complete bar on federal court relitigation of 

claims already rejected in state proceedings.”); Jamison, 544 

F.3d at 273 (the “unreasonable application” standard is not 

meaningless). We must use our habeas authority only to 

“guard against extreme malfunctions in the state criminal 

justice systems,” Harrington, 131 S. Ct. at 786, and today, we 

exercise our authority to do so.

V.

We conclude that the District Court erred in 

determining that § 2254(d)(1) prevented it from granting 

Garrus habeas relief. The state court unreasonably applied 

Apprendi by allowing Garrus to be sentenced beyond the 

statutory maximum based on a judicial finding that he 

burglarized an occupied building when he was actually 

convicted of burglarizing an unoccupied building.

Having determined that AEDPA does not bar federal 

habeas relief, we must also consider whether the state court 

determination had a “substantial and injurious effect” on 

Garrus‟s sentence. Fry v. Pliler, 551 U.S. 112, 116-20 
41

(2007); see also Horn, 536 U.S. at 272 (“none of our postAEDPA cases have suggested that a writ of habeas corpus 

should automatically issue if a prisoner satisfies the AEDPA 

standard”). There is no doubt that the state court‟s 

determination relied on its application of Apprendi to uphold 

the trial court‟s decision to increase the length of Garrus‟s 

sentence, and that Garrus has therefore shown a “substantial 

and injurious effect.” We conclude that the District Court 

erred in failing to grant habeas relief under these 

circumstances. We will reverse the order of the District 

Court, and remand with directions that a writ of habeas 

corpus be conditionally granted, providing that petitioner be 

resentenced or released from custody within 120 days, unless, 

within that time, the Commonwealth of Pennsylvania 

determines that petitioner qualifies for the sentencing 

enhancement based on his two 1995 robbery convictions.
1

Garrus v. Sec’y PA Dept. of Corrections

No. 09-3586

HARDIMAN, Circuit Judge, dissenting, joined by 

CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit 

Judges.

Judge Greenaway has succinctly explained how the 

Court has gone astray in this case, and I join his dissent in its 

entirety. I write separately because I think the reason why the 

majority has erred illuminates how it has done so.

I

Since its enactment in 1996, no law has so vexed the 

United States Courts of Appeals as the Antiterrorism and 

Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. In 

twelve years, the Supreme Court has granted certiorari in 

ninety-four cases arising under AEDPA, forty-six of which 

involved questions of federal court deference to decisions of 

state courts.1

 1 See Parker v. Matthews, 132 S. Ct. 2148 (2012); 

Coleman v. Johnson, 132 S. Ct. 2060 (2012); Lafler v. 

Cooper, 132 S. Ct. 1376 (2012); Howes v. Fields, 132 S. Ct. 

1181 (2012); Hardy v. Cross, 132 S. Ct. 490 (2011); Bobby v. 

Dixon, 132 S. Ct. 26 (2011); Cavazos v. Smith, 132 S. Ct. 2 

(2011); Bobby v. Mitts, 131 S. Ct. 1762 (2011); Cullen v. 

Pinholster, 131 S. Ct. 1388 (2011); Felkner v. Jackson, 131 

S. Ct. 1305 (2011); Harrington v. Richter, 131 S. Ct. 770 

(2011); Premo v. Moore, 131 S. Ct. 733 (2011); Berghuis v. 

Thompkins, 130 S. Ct. 2250 (2010); Renico v. Lett, 130 S. Ct. 

1855 (2010); Berghuis v. Smith, 130 S. Ct. 1382 (2010); 

Wood v. Allen, 130 S. Ct. 841 (2010); Smith v. Spisak, 130 

 Thirty-four of those cases (approximately 
2

seventy-four percent) have been reversed because the court of 

appeals failed to afford sufficient deference to the state court.

2

 

S. Ct. 676 (2010); McDaniel v. Brown, 130 S. Ct. 665 (2010); 

Porter v. McCollum, 130 S. Ct. 447 (2009); Knowles v. 

Mirzayance, 556 U.S. 111 (2009); Waddington v. Sarausad, 

555 U.S. 179 (2009); Wright v. Van Patten, 552 U.S. 120 

(2008); Panetti v. Quarterman, 551 U.S. 930 (2007); Fry v. 

Pliler, 551 U.S. 112 (2007); Uttecht v. Brown, 551 U.S. 1 

(2007); Schriro v. Landrigan, 550 U.S. 465 (2007); Brewer v. 

Quarterman, 550 U.S. 286 (2007); Abdul-Kabir v. 

Quarterman, 550 U.S. 233 (2007); Carey v. Musladin, 549 

U.S. 70 (2006); Rice v. Collins, 546 U.S. 333 (2006); Kane v. 

Garcia Espitia, 546 U.S. 9 (2005); Rompilla v. Beard, 545 

U.S. 374 (2005); Miller-El v. Dretke, 545 U.S. 231 (2005); 

Brown v. Payton, 544 U.S. 133 (2005); Holland v. Jackson, 

542 U.S. 649 (2004); Yarborough v. Alvarado, 541 U.S. 652 

(2004); Middleton v. McNeil, 541 U.S. 433 (2004); Mitchell 

v. Esparza, 540 U.S. 12 (2003); Yarborough v. Gentry, 540 

U.S. 1 (2003); Wiggins v. Smith, 539 U.S. 510 (2003); 

Lockyer v. Andrade, 538 U.S. 63 (2003); Woodford v. 

Visciotti, 537 U.S. 19 (2002); Early v. Packer, 537 U.S. 3 

(2002); Bell v. Cone, 535 U.S. 685 (2002); Ramdass v. 

Angelone, 530 U.S. 156 (2000); Williams v. Taylor, 529 U.S. 

362 (2000).

2 See Parker, 132 S. Ct. 2148; Coleman, 132 S. Ct. 

2060; Howes, 132 S. Ct. 1181; Hardy, 132 S. Ct. 490; Dixon, 

132 S. Ct. 26; Cavazos, 132 S. Ct. 2; Mitts, 131 S. Ct. 1762; 

Pinholster, 131 S. Ct. 1388; Felkner, 131 S. Ct. 1305; 

Harrington, 131 S. Ct. 770; Premo, 131 S. Ct. 733;

Thompkins, 130 S. Ct. 2250; Renico, 130 S. Ct. 1855; Smith, 

130 S. Ct. 1382; Spisak, 130 S. Ct. 676; McDaniel, 130 S. Ct. 
3

Remarkably, twenty-two of those cases—almost fifty 

percent—were reversed without dissent.

3

 

665; Knowles, 556 U.S. 111; Waddington, 555 U.S. 179; 

Wright, 552 U.S. 120; Uttecht, 551 U.S. 1; Schriro, 550 U.S. 

465; Carey, 549 U.S. 70; Rice, 546 U.S. 333; Kane, 546 U.S.

9; Payton, 544 U.S. 133; Holland, 542 U.S. 649; Yarborough, 

541 U.S. 652; Middleton, 541 U.S. 433; Mitchell, 540 U.S. 

12; Gentry, 540 U.S. 1; Lockyer, 538 U.S. 63; Woodford, 537 

U.S. 19; Early, 537 U.S. 3; Bell, 535 U.S. 685.

3 See Parker, 132 S. Ct. at 2155 (holding that the Sixth 

Circuit erred by following its own precedent rather than that

of the Supreme Court in determining what is “clearly 

established Federal law”); Coleman, 132 S. Ct. at 2062 

(holding that the Third Circuit “failed to afford due respect to 

the role of the jury and the state courts of Pennsylvania”); 

Hardy, 132 S. Ct. at 495 (reversing the Second Circuit and 

stating, “[T]he deferential standard of review set out in 28 

U.S.C. § 2254(d) does not permit a federal court to overturn a 

state court’s decision on the question of unavailability merely 

because the federal court identifies additional steps that might 

have been taken. Under AEDPA, if the state-court decision 

was reasonable, it cannot be disturbed.”); Dixon, 132 S. Ct. at 

27 (“Because it is not clear that the Ohio Supreme Court erred 

at all, much less erred so transparently that no fairminded 

jurist could agree with that court’s decision, the Sixth 

Circuit’s judgment must be reversed.”); Mitts, 131 S. Ct. at

1765 (holding that the Sixth Circuit erred in finding that the 

state court’s jury instructions were contrary to clearly 

established federal law); Felkner, 131 S. Ct. at 1307 (“The 

state appellate court’s decision was plainly not unreasonable. 
4

 

There was simply no basis for the Ninth Circuit to reach the 

opposite conclusion, particularly in such a dismissive 

manner.”); Harrington, 131 S. Ct. at 778 (“[The Ninth 

Circuit’s] opinion shows an improper understanding of 

§ 2254(d)’s unreasonableness standard and operation in the 

context of a Strickland claim.”); Premo, 131 S. Ct. at 746 

(holding that the Ninth Circuit erred in granting habeas relief 

because the state court’s decision was not an unreasonable 

application of Strickland v. Washington, 466 U.S. 668 

(1984)); Berghuis, 130 S. Ct. at 1392 (finding that the Sixth 

Circuit erred in granting habeas relief because the state 

court’s decision was consistent with Duren v. Missouri, 439 

U.S. 357 (1979)); Spisak, 130 S. Ct. at 684 (holding that the 

Sixth Circuit erred in granting habeas relief because the state 

court’s upholding of jury instructions and verdict forms 

regarding the weighing of aggravating and mitigating factors 

was not “contrary to, or . . . an unreasonable application of, 

clearly established Federal law” (citation and internal 

quotation marks omitted)); McDaniel, 130 S. Ct. at 672

(holding that the Ninth Circuit erred in granting habeas relief 

because the state court’s rejection of the defendant’s 

insufficiency-of-the-evidence claim was not unreasonable 

under AEDPA); Knowles, 556 U.S. at 114 (finding that the 

Ninth Circuit erred because the state court’s decision that the 

defendant was not deprived of effective counsel was not 

“contrary to, or . . . an unreasonable application of, clearly 

established Federal law” (citation and internal quotation 

marks omitted)); Wright, 552 U.S. at 126 (reversing the 

Seventh Circuit and stating, “because our cases give no clear 

answer to the question presented, let alone one in [the 

defendant]’s favor, it cannot be said that the state court 

unreasonably applied clearly established Federal law.” 
5

 

(citation and internal quotation marks omitted)); Carey, 549 

U.S. at 72 (holding that the Ninth Circuit improperly granted 

habeas relief because the state court’s decision that it was not 

inherently prejudicial when court spectators wore buttons 

depicting the murder victim was not contrary to or an 

unreasonable application of clearly established federal law); 

Rice, 546 U.S. at 334 (finding that the Ninth Circuit 

improperly granted habeas relief because it was not 

unreasonable for the state trial court to “credit the 

prosecutor’s race-neutral explanations for the [defendant’s] 

Batson challenge”); Kane, 546 U.S. at 10 (holding that the 

Ninth Circuit improperly granted habeas relief because there 

exists no clearly established right under federal law to access 

a law library while in jail); Holland, 542 U.S. at 652

(concluding that the Sixth Circuit erred because the state 

court’s application of Strickland was not unreasonable under 

AEDPA); Middleton, 541 U.S. at 437–38 (holding that the 

Ninth Circuit erred because the state appellate court’s 

conclusion that one incorrect statement in jury instructions 

did not render the instructions likely to mislead the jury was 

not unreasonable); Mitchell, 540 U.S. at 13 (finding that the 

Sixth Circuit’s decision “ignore[d] the limits imposed on 

federal habeas review by 28 U.S.C. § 2254(d)”); Gentry, 540 

U.S. at 11 (noting that the Ninth Circuit gave “too little 

deference to the state courts that have primary responsibility 

for supervising defense counsel in state criminal trials”);

Woodford, 537 U.S. at 20 (holding that the Ninth Circuit’s 

decision “exceed[ed] the limits imposed on federal habeas 

review by 28 U.S.C. § 2254(d)”); Early, 537 U.S. at 4

(finding that the state appellate court’s determination that the 

trial court’s comments did not coerce the jury was not

contrary to clearly established federal law).
6

The Supreme Court decisions catalogued in the margin

echo a common mistake: the failure to adhere to AEDPA’s 

extraordinarily deferential standard of review. Our Court 

makes that same mistake today.

The majority’s fundamental error is manifest in the

question we presented to the parties: “whether the district 

court erred in considering the defendant’s 1997 conviction for 

second-degree burglary in determining whether the defendant 

should be sentenced under Pennsylvania’s ‘three strikes’ law, 

42 Pa. Cons. Stat. § 9714.” This was the wrong question to 

ask in an AEDPA case that originated in state court. As the 

Commonwealth of Pennsylvania correctly argued, “[u]nder 

the federal habeas statute, ‘the only question that matters [is] 

whether [the] state court decision is contrary to, or involved 

an unreasonable application of, clearly established federal 

law.’” Appellee’s Supp. Br. 1 (emphasis added) (quoting 

Lockyer v. Andrade, 538 U.S. 63, 71 (2003)). Indeed, “a state 

prisoner must show that the state court’s ruling on the claim 

being presented in federal court was so lacking in justification 

that there was an error well understood and comprehended in 

existing law beyond any possibility for fairminded 

disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–

87 (2011). Even petitioner Garrus acknowledged—albeit in 

somewhat apologetic fashion—that the question we presented 

invited argument under the wrong legal standard:

The question presented is somewhat ambiguous 

because the district court did not “consider” the 

1997 burglary conviction for purposes of 

“determining whether the defendant should be 

sentenced under Pennsylvania’s ‘three strikes’ 

law.” Instead, applying 28 U.S.C. § 2254(d)(1), 

the district court analyzed whether the 
7

Pennsylvania Superior Court unreasonably 

applied clearly established U.S. Supreme Court 

precedent when it upheld the state sentencing 

court’s decision to rely on police reports and 

witness statements to make findings of fact 

about the 1997 burglary conviction, only to rely 

on those findings to impose an enhanced 

sentence under the Three Strikes Law.

Appellant’s Br. 1 n.1.

Instead of posing a question that circumvented

AEDPA’s deferential standard of review, we should have 

asked whether any Supreme Court decision directly prohibits 

a state court judge from looking to the facts underlying a

defendant’s prior conviction when considering a recidivism 

enhancement. The answer to that question is “no.”

II

Central to the state court’s decision was the issue of 

who—judge or jury—should find facts regarding prior 

convictions when assessing a defendant’s history of 

recidivism. Because recidivism “‘does not relate to the 

commission of the offense, but goes to the punishment only, 

[it] therefore . . . may be subsequently decided’” by the 

sentencing judge. Almendarez-Torres v. United States, 523 

U.S. 224, 244 (1998) (quoting Graham v. West Virginia, 224 

U.S. 616, 629 (1912)). Garrus did not even attempt to explain

why his case does not fall squarely within the recidivism 

exception announced in Almendarez-Torres. Instead, he 

relied entirely on Apprendi v. New Jersey, 530 U.S. 466 

(2000). But as then-Judge Sotomayor wrote for the Court of 

Appeals for the Second Circuit, in a case not subject to 
8

AEDPA’s deferential standard of review, “recidivism has 

long been considered a distinct issue,” and “[n]othing in 

Apprendi itself—as it involved a hate crime statute enhancing 

sentences based on the motivation underlying the crime—

calls that distinction into question.” United States v. 

Santiago, 268 F.3d 151, 156 (2d Cir. 2001). Judge 

Sotomayor then clearly explained why Apprendi is of no help 

to habeas petitioners such as Garrus:

Almendarez-Torres explains why recidivism 

requires special treatment, and absent an 

explicit Supreme Court ruling to the contrary, 

we decline to institute a policy that runs counter 

to the principles set forth in that opinion. In 

short, we read Apprendi as leaving to the judge 

. . . the task of finding not only the mere fact of 

previous convictions but other related issues as 

well. Judges frequently must make factual 

determinations for sentencing, so it is hardly 

anomalous to require that they also determine 

the “who, what, when, and where” of a prior 

conviction.

Id.

If this were not a case governed by AEDPA and the 

question presented was whether what befell Garrus violated 

the rule of Apprendi, the majority’s decision might well be 

correct. It is no secret that Almendarez-Torres is one of the 

most tenuous precedents of the Supreme Court; three of the 

five sitting justices who participated in Apprendi have openly 
9

criticized Almendarez-Torres.

4

The existence of a circuit split demonstrates that it is 

wrong to conclude that “‘fairminded jurists could [not] 

disagree’ on the correctness of the state court’s decision” in 

this case. Harrington v. Richter, 131 S. Ct. 770, 786 (2011) 

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 

The Courts of Appeals for the Second and Eighth Circuits 

have found no constitutional violation in circumstances 

similar to those presented in this appeal. See Portalatin v. 

Graham, 624 F.3d 69 (2d Cir. 2010) (en banc); United States

v. Davis, 260 F.3d 965 (8th Cir. 2001).

 Nevertheless, I am convinced 

that even critics of Almendarez-Torres would be hard-pressed 

to hold that the state court in this case violated the rule of 

Apprendi when it found facts pursuant to a state recidivist 

statute.

In Portalatin, the Second Circuit consolidated the 

habeas petitions of three prisoners who had been sentenced 

under New York’s persistent felony offender (PFO) statute. 

The petitioners argued that the statute was unconstitutional 

because it required a sentencing judge to assess the nature,

 4 See Apprendi, 530 U.S. at 489–90 (Scalia, Thomas, 

Ginsburg, JJ., joining the majority) (“[I]t is arguable that 

Almendarez-Torres was incorrectly decided, and that a logical 

application of our reasoning today should apply if the 

recidivist issue were contested.”); id. at 520–21 (Thomas, J., 

concurring) (“[O]ne of the chief errors of AlmendarezTorres—an error to which I succumbed—was to attempt to 

discern whether a particular fact is traditionally (or typically) 

a basis for a sentencing court to increase an offender’s 

sentence. . . . [T]his approach just defines away the real 

issue.”).
10

rather than the mere fact of, predicate felony convictions 

before imposing a PFO sentence. They urged the court to 

construe the Almendarez-Torres exception to Apprendi

narrowly so as to prevent a sentencing judge from considering

the facts underlying a defendant’s prior conviction when 

forming an opinion about his criminal history. Finding “no 

clear holding of the Supreme Court to command such a 

result,” the Second Circuit explained that, “‘[g]iven the lack 

of holdings from th[e] [Supreme Court]’ construing the 

recidivism exception as narrowly as petitioners urge, ‘it 

cannot be said that the state court unreasonably applied 

clearly established federal law.’” Id. at 92 (quoting Carey v. 

Musladin, 549 U.S. 70, 77 (2006)). Commenting on the “lack 

of guidance as to the precise scope of the recidivism 

exception,” the court concluded:

It might well be constitutionally significant 

whether a sentencing judge is required to find, 

for example, that a defendant’s criminal history 

is “especially violent” before imposing a 

sentence, or whether, as in New York, a 

sentencing judge simply must find that the 

nature of his criminal history justifies “extended 

incarceration and life-time supervision.” . . . 

The Supreme Court may answer that question at 

some future time. But, if our Court cannot 

divine a clear answer from the Court’s existing 

holdings, AEDPA prevents us from faulting a 

state court for selecting one reasonable 

conclusion over another.
11

Id. at 93; see also United States v. Snype, 441 F.3d 119, 148 

(2d Cir. 2006) (noting that while the continued viability of 

Almendarez-Torres has been questioned, the Supreme Court 

has not reversed that decision).

The Eighth Circuit reached a similar result in Davis. 

There, the appellant had been sentenced to a term of life 

imprisonment as a repeat offender following a federal 

conviction for attempted armed bank robbery, an offense that 

carried a statutory maximum of twenty-five years. He argued 

that the question of whether his past robbery convictions were 

qualifying felonies for purposes of the recidivist statute 

should have been decided by the jury, not by the sentencing 

judge. The court disagreed, finding that the “fact of prior 

conviction includes not only the fact that a prior conviction 

exists, but also a determination of whether a conviction is one 

of the enumerated types qualifying for the sentence 

enhancement.” Davis, 260 F.3d at 969. Conceding that 

Apprendi casts doubt on the viability of Almendarez-Torres, 

the Eighth Circuit nonetheless concluded that its role was “to 

apply Supreme Court precedent as it stands, and not as it may 

develop.” Id.

Adverse to the Second Circuit’s decision in Portalatin 

and the Eighth Circuit’s decision in Davis stands the opinion 

of the Ninth Circuit in Wilson v. Knowles, 638 F.3d 1213 (9th 

Cir. 2011). After a 1993 car accident, Wilson pleaded no 

contest to gross vehicular manslaughter while driving under 

the influence of alcohol and to proximately causing bodily 

injury while driving under the influence of alcohol. When 

sentencing Wilson for a separate 2000 conviction for driving 

under the influence with a prior felony, a California judge 

relied on the information and preliminary hearing transcripts 

from Wilson’s 1993 convictions to find numerous additional 
12

facts about the earlier offenses, including that Wilson 

personally inflicted bodily injury, that the bodily injury was 

great, and that his victim was not an accomplice. These 

factual findings led the judge to conclude that Wilson’s 1993 

convictions qualified as two predicate offenses for purposes 

of California’s Three Strikes Law, and Wilson received an 

enhanced sentence of 25-years to life.

The Ninth Circuit held that the state court’s factfinding 

was an unreasonable application of Apprendi. See id. at 1215 

(“It would be unreasonable to read Apprendi as allowing a 

sentencing judge to find the kinds of disputed facts at issue 

here. . . . The judge’s fact-finding seven years after the 1993 

conviction extended beyond any reasonable interpretation of 

the prior conviction exception.”). Chief Judge Kozinski 

dissented, stating: “The Supreme Court hasn’t straightened all 

this out. . . . AEDPA deference can be a bitter pill to swallow. 

In some habeas cases, we must reject what appear to be valid 

constitutional claims because petitioner’s rights have not yet 

been clearly established by the Supreme Court.” Id. at 1217

(Kozinski, C.J., dissenting) (citations omitted).

Although it is possible that Wilson was correctly 

decided while Portalatin, Davis, and Chief Judge Kozinski’s 

dissent in Wilson were all in error, it is immaterial for 

AEDPA purposes which line of analysis is correct. The mere 

fact of a difference of opinion among courts of appeals leads 

ineluctably to the conclusion that a state court cannot run 

afoul of AEDPA regardless of which of these two paths it 

chooses.

Stated differently, I am loath to conclude that the 

United States Court of Appeals judges who decided

Portalatin and Davis are not “fairminded.” Yarborough, 541 
13

U.S. at 664. Indeed, the intersection of criminal procedure

and constitutional law often presents difficult questions upon 

which reasonable minds can differ.

5

 5 See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 

305 (2009) (5-4 decision); Apprendi, 530 U.S. 466 (5-4 

decision); Almendarez-Torres, 523 U.S. 224 (5-4 decision).

And while it is true that 

no Supreme Court decision explicitly authorized the state 

judge to delve into Garrus’s prior conviction, the fact that no 

decision of the Court prohibited her from doing so is 

dispositive under AEDPA. Unless and until the Supreme 

Court overrules or modifies Almendarez-Torres, state courts

cannot properly be held to have violated the Constitution 

when they find facts at sentencing to determine whether a 

recidivist statute applies. For that reason, I respectfully 

dissent.
1

GREENAWAY, JR., Circuit Judge, dissenting, joined by

CHAGARES, HARDIMAN, and VANASKIE, Circuit 

Judges.

Under the Anti-Terrorism and Effective Death Penalty 

Act of 1996 (“AEDPA”), Congress vested the Supreme 

Court — and only the Supreme Court — with the authority to 

determine clearly established law for purposes of analyzing 

an inmate‟s federal challenge to a state court judgment. 

Today, the majority feigns fidelity to this enduring tenet of 

AEDPA jurisprudence. In the process, the majority assumes 

the role of legislator, rewriting AEDPA to add this Court, 

along with the Supreme Court, as the two judicial bodies 

capable of delineating clearly established law. Armed with 

this newly created authority, the majority wades through 

murky Supreme Court precedent and emerges with what it 

purports to be an unassailable legal principle: that the priorconviction exception enshrined in Apprendi v. New Jersey, 

530 U.S. 466 (2000), forbids a sentencing court from finding 

facts inconsistent with a prior conviction when applying a 

state recidivism statute.

Unlike the majority, I cannot discern any principle in 

Apprendi or other authoritative Supreme Court precedent that 

would render this interpretation of the prior-conviction 

exception objectively unreasonable, the deferential standard 

by which we must judge the state court‟s determination. 

Indeed, the majority identifies not one Supreme Court case 

expounding on the contours of the amorphous priorconviction exception. This lack of clarity coupled with the 

inherent tension between Apprendi and Almendarez-Torres v. 

United States, 523 U.S. 224 (1998) — a controlling case the 

majority brushes aside as having limited relevance — belies 
2

the majority‟s triumphant conclusion that the state court‟s 

determination was objectively unreasonable. 

I do not disagree that the majority‟s interpretation of 

the prior-conviction exception is a reasonable and even 

favorable one, preventing an otherwise seemingly inequitable 

result. Of course, our task is not to simply choose the 

preferred reading of an ambiguous legal phrase. Absent 

guidance from the Supreme Court, we are left to determine 

whether the state court‟s interpretation was objectively 

unreasonable. Given that this area of law is, at best, in a state 

of flux, AEDPA “demands that [the] state-court decision[] be 

given the benefit of the doubt.” Renico v. Lett, --- U.S. ---, 

---, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks 

and citation omitted). For this reason, I am compelled to 

respectfully dissent.

I. AEDPA Imposes a High Threshold

While the majority outlines the basic AEDPA 

framework governing our inquiry, AEDPA‟s prominent role 

in this case requires further elaboration.

As amended by AEDPA, 28 U.S.C. § 2254 provides, 

in pertinent part: “[A] circuit judge . . . shall entertain an 

application for a writ of habeas corpus in behalf of a person in 

custody pursuant to the judgment of a State court only on the 

ground that he is in custody in violation of the Constitution or 

laws or treaties of the United States.” 28 U.S.C. § 2254(a). 

“[W]ith respect to any claim that was adjudicated on the 

merits in State court proceedings,” the writ shall not issue 

unless the adjudication of the claim “resulted in a decision 

that was contrary to, or involved an unreasonable application 

of, clearly established Federal law, as determined by the 
3

Supreme Court of the United States” or was “based on an 

unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” Id. § 

2254(d)(1)-(2).

A state court decision is “contrary to” Supreme Court 

precedent “if the state court applies a rule that contradicts the 

governing law set forth in [Supreme Court] cases,” or “if the 

state court confronts a set of facts that are materially 

indistinguishable from a decision of th[e] Court and 

nevertheless arrives at a result different from [the Court‟s] 

precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 

A state court decision involves an unreasonable application of 

federal law “if the state court identifies the correct governing 

legal rule from [the Supreme] Court‟s cases but unreasonably 

applies it to the facts of the particular state prisoner‟s case.” 

Id. at 407. To qualify as an “unreasonable application” of 

clearly established federal law, the state court‟s application 

must be objectively unreasonable. Id. at 409. That the state 

court decision was incorrect or erroneous is insufficient if the 

error was nonetheless objectively reasonable. Id. at 410; see 

also Renico, 130 S. Ct. at 1862 (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.” (quoting Williams, 529 U.S. at 

410)). “Indeed, „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.‟” Renico, 

130 S. Ct. at 1862 (quoting Williams, 529 U.S. at 411). 

As a result, the “contrary” and “unreasonable 

application” thresholds are “highly deferential . . . for 

evaluating state-court rulings, which demand[] that state-court 

decisions be given the benefit of the doubt.” Cullen v. 
4

Pinholster, --- U.S. ---, ---, 131 S. Ct. 1388, 1398 (2011) 

(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per 

curiam)). These standards are “„difficult to meet,‟ because 

the purpose of AEDPA is to ensure that federal habeas relief 

functions as a „guard against extreme malfunctions in the 

state criminal justice systems,‟ and not as a means of error 

correction.” Greene v. Fisher, --- U.S. ---, ---, 132 S. Ct. 38, 

43 (2011) (quoting Harrington v. Richter, --- U.S. ---, ---, 131 

S. Ct. 770, 786 (2011)).

I agree with the majority that the focus of our inquiry 

is on the “unreasonable” prong because the state court 

identified controlling Supreme Court precedent. See 

Williams, 529 U.S. at 406 (“[A] run-of-the-mill state-court 

decision applying the correct legal rule from our cases to the 

facts of a prisoner‟s case would not fit comfortably within § 

2254(d)(1)‟s „contrary to‟ clause.”). As such, we can grant 

Garrus‟s petition only if the sentencing court‟s application of 

Pennsylvania‟s recidivism statute transcended the bounds of 

this undeniably deferential framework.

II. Majority’s Discussion of Supreme Court 

Precedent Falls Short

It is undeniable that the majority‟s interpretation of 

Apprendi‟s prior-conviction exception cannot stand in the 

absence of clearly established law. See Howes v. Fields, ---

U.S. ---, ---, 132 S. Ct. 1181, 1187 (2012) (rejecting a circuit 

court‟s determination that Supreme Court precedent clearly 

established a categorical rule regarding custodial 

interrogations of inmates). Recognizing its obligation, the 

majority spends pages examining Supreme Court precedent. 

Yet nowhere in that examination does the majority grapple 

with precedent that undermines its position. This principled 
5

avoidance is the only means by which the majority can reach 

the conclusion that Supreme Court precedent clearly 

establishes that it would be objectively unreasonable to 

interpret the phrase “the fact of a prior conviction” as the state 

court did in this case.

I do not disagree with the majority that Apprendi is at 

the forefront of our inquiry. I do disagree, however, with the 

majority‟s perception that Apprendi is the be-all and end-all 

of our inquiry. The majority‟s singular focus is apparent at 

the beginning of its opinion, stating that the “[k]ey” to 

resolving this case involves answering “whether, pursuant to 

AEDPA, the state court unreasonably applied Apprendi.” 

(Majority Op. at 3.) However, as the majority acknowledges, 

Garrus was sentenced under 42 Pa. Cons. Stat. § 9714, 

Pennsylvania‟s recidivism statute. Despite this admission, 

Almendarez-Torres — a critical Supreme Court case 

examining a sentencing court‟s power to engage in 

factfinding when applying a recidivism statute — plays 

second fiddle to Apprendi in the majority‟s opinion. And 

when the majority does address Almendarez-Torres, it

sidesteps the very logic in Almendarez-Torres that casts even 

the slightest doubt on the notion that the majority‟s 

interpretation of the prior-conviction exception is clearly 

established. 

Almendarez-Torres involved a federal statute that 

permitted an enhanced penalty for any person unlawfully in 

the United States who had previously been deported after 

being convicted of an aggravated felony. 523 U.S. at 226. 

The defendant pled guilty to being in the United States, 

without permission, after being deported. Id. At sentencing, 

the defendant argued that the enhancement should not apply 

because his three previous convictions for aggravated 
6

felonies, which the defendant did not contest, were not 

charged in the current indictment. Id. at 227. The district 

court rejected this argument, found the existence of the prior 

convictions, and applied the sentence enhancement. Id. The 

Fifth Circuit affirmed. Id. at 227-28. 

The Supreme Court held that the district court properly 

treated the defendant‟s prior convictions as a sentencing 

factor and not a separate offense. Id. at 235. The Court 

repeatedly stressed that its analysis was predicated on the 

unique role recidivism plays at sentencing. See id. (“At the 

outset, we note that the relevant statutory subject matter is 

recidivism. That subject matter — prior commission of a 

serious crime — is as typical a sentencing factor as one might 

imagine.”); id. (“With recidivism as the subject matter in 

mind . . . .”); id. at 241 (“[The statute at issue] involves one of 

the most frequently found factors that affects sentencing —

recidivism.”); id. at 243 (“[T]he sentencing factor at issue 

here — recidivism — is a traditional, if not the most 

traditional, basis for a sentencing court‟s increasing an 

offender‟s sentence.”). The Court noted that, historically,

recidivism operated outside of the general framework 

requiring elements of an offense be submitted to a jury 

because “recidivism „does not relate to the commission of the 

offense, but goes to the punishment only, and therefore . . .

may be subsequently decided.‟” Id. (quoting Graham v. West 

Virginia, 224 U.S. 616, 624 (1912)).

Two years after Almendarez-Torres, the Supreme 

Court rendered a decision in what we have described as its 

“seminal case” on sentencing — Apprendi. Reinhold v. 

Rozum, 604 F.3d 149, 152 (3d Cir. 2010). In Apprendi, the 

defendant received an enhanced sentence of twelve years for 

weapon offenses punishable by a statutory maximum of ten 
7

years, based on a determination by the sentencing court, not 

the jury, that the crime was racially motivated. 530 U.S. at 

470-71. Rejecting this approach, the Court pronounced that 

the Sixth Amendment required that “[o]ther than the fact of a 

prior conviction, any fact that increases the penalty for a 

crime beyond the prescribed statutory maximum must be 

submitted to a jury, and proved beyond a reasonable doubt.” 

Id. at 490. Central to the Court‟s determination was the fact 

that the hate crime enhancement required a finding that the 

defendant‟s purpose was to intimidate on the basis of race —

an inquiry into the defendant‟s mens rea, an element of the 

offense. Id. at 492-93.

The Court attempted to dispel any apparent tension 

between the rule announced in Apprendi and the Court‟s 

decision in Almendarez-Torres. “Whereas recidivism „does 

not relate to the commission of the offense‟ itself, New 

Jersey‟s biased purpose inquiry goes precisely to what 

happened in the „commission of the offense.‟” Id. at 496 

(quoting Almendarez-Torres, 523 U.S. at 230). But the Court 

was cognizant that “it is arguable that Almendarez-Torres was 

incorrectly decided” based on a “logical application” of the 

Court‟s analysis in Apprendi. Id. at 489. In the end, the 

Court reasoned that Almendarez-Torres “represents at best an 

exceptional departure” from Apprendi. Id. at 487. While the 

Apprendi Court provided less than unbridled support for 

Almendarez-Torres, it is clear that Almendarez-Torres had 

continuing vitality after Apprendi.

The majority devotes no attention to the integral role 

recidivism played in Almendarez-Torres, instead trying to 

minimize Almendarez-Torres‟s significance entirely. 

Quoting Apprendi, the majority refers to Almendarez-Torres

as having “limited” and “narrow” application. (Majority Op. 
8

at 15 (quoting Apprendi, 530 U.S. at 488 n.14, 489).) Put in 

its proper light, however, this characterization in no way 

subverts the importance of Almendarez-Torres to Garrus‟s 

case. 

Apprendi did not involve the application of a 

recidivism statute. Instead, Apprendi addressed a hate crime 

enhancement that inquired as to the defendant‟s mens rea, 

which the Court iterated was “as close as one might hope to 

come to a core criminal offense „element.‟” 530 U.S. at 493. 

By contrast, Almendarez-Torres expressly excluded 

recidivism as an exception to the nascent legal principle 

enshrined three years later in Apprendi. Almendarez-Torres, 

523 U.S. at 244 (“[T]o hold that the Constitution requires that 

recidivism be deemed an „element‟ of petitioner‟s offense 

would mark an abrupt departure from a longstanding tradition 

of treating recidivism as going to the punishment only.” 

(internal quotation marks and citation omitted)). As a result, 

it is unsurprising that Apprendi ensured that AlmendarezTorres did not apply outside the recidivism context. 

However, recidivism is squarely at issue in this case, belying 

the majority‟s attempt to minimize Almendarez-Torres‟s 

relevance.

As much as the majority would like to forget

Almendarez-Torres, there is little debate that AlmendarezTorres remains binding precedent. After Apprendi cast doubt 

on the continuing vitality of Almendarez-Torres, we 

addressed whether Almendarez-Torres‟s viability had been 

short-lived. Because the Apprendi Court expressly declined 

to overrule Almendarez-Torres, we unsurprisingly applied 

Almendarez-Torres and held that predicate offenses under a 

recidivism statute need not be charged in an indictment and 

submitted to the jury. See United States v. Weaver, 267 F.3d 
9

231, 250 (3d Cir. 2001) (“Recently, in Apprendi[], the Court 

upheld the validity of Almendarez-Torres . . . .”). We have 

since reaffirmed the viability of Almendarez-Torres and have 

not retreated from this determination. United States v. 

Arrelucea-Zamudio, 581 F.3d 142, 157 n.15 (3d Cir. 2009) 

(“Although several Supreme Court decisions have cast doubt 

on the statute‟s continuing constitutional viability postApprendi, . . . we are bound by Almendarez-Torres . . . .”); 

United States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005) 

(“The holding in Almendarez-Torres remains binding 

law . . . .”).1 The Supreme Court continues to recognize the 

separate treatment afforded prior convictions in AlmendarezTorres. See United States v. O’Brien, --- U.S. ---, ---, 130 S. 

Ct. 2169, 2174 (2010). 

 

1

Every other circuit court to have considered the issue has 

agreed that Almendarez-Torres remains good law. See United 

States v. Gonzalez, 682 F.3d 201, 204 (2d Cir. 2012); United 

States v. Salazar, 682 F.3d 953, 958 n.2 (11th Cir. 2012); 

United States v. Farrell, 672 F.3d 27, 37 n.12 (1st Cir. 2012); 

United States v. Nigg, 667 F.3d 929, 935-36 (7th Cir. 2012); 

United States v. Ruiz-Apolonio, 657 F.3d 907, 921 (9th Cir. 

2011); United States v. McMurray, 653 F.3d 367, 371 (6th 

Cir. 2011); United States v. Beckstrom, 647 F.3d 1012, 1020 

(10th Cir. 2011); United States v. Smith, 640 F.3d 358, 369 

(D.C. Cir. 2011); United States v. Olalde-Hernandez, 630 

F.3d 372, 377 (5th Cir. 2011); United States v. Mason, 628 

F.3d 123, 134 (4th Cir. 2010); United States v. Alston, 625 

F.3d 397, 406 (8th Cir. 2010).
10

III. State Court’s Determination Was Objectively 

Reasonable

Against this proper legal backdrop, there can be no 

doubt that, for purposes of sentencing under Pennsylvania‟s 

recidivism statute, the state court‟s determination that

Garrus‟s second-degree burglary conviction could be treated 

as a first-degree offense was not objectively unreasonable. 

Almendarez-Torres established that a sentencing court 

applying a recidivism statute that carries with it a sentence 

above the statutory maximum is permitted to engage in 

judicial factfinding regarding the defendant‟s prior 

convictions. In Apprendi, the Court clarified that such 

judicial factfinding was impermissible, except that relating to 

“the fact of a prior conviction.” 530 U.S. at 490. In other 

words, the exact undefined judicial factfinding permitted by 

Almendarez-Torres. 

Apprendi provides no guidance regarding the scope or 

meaning of the prior-conviction exception. For good reason, 

Apprendi‟s true import is not the establishment of the 

exception to the rule but the rule itself — that a judge cannot 

find facts regarding an element of the offense where the 

defendant faces a sentence above the statutory maximum. 

Apprendi did not need to expound on the scope of the priorconviction exception because Apprendi was not, contrary to 

Almendarez-Torres, a recidivism case. The prior-conviction 

exception remains as amorphous and undefined as the day 

Apprendi was decided. See Kessee v. Mendoza-Powers, 574 

F.3d 675, 676 (9th Cir. 2009) (“What is the scope of the 

„prior conviction‟ exception to the general rule that a 

sentencing judge may not make factual findings that increase 

the statutory maximum criminal penalty? The Supreme Court 

has not yet answered that question.”).
11

I do not deny that the majority‟s reading of the priorconviction exception — prohibiting a sentencing court from 

applying a recidivism statute and finding a fact inconsistent 

with a prior conviction — is a reasonable interpretation.2 

Under AEDPA, that the majority‟s reading was reasonable 

does not ipso facto render all other readings patently 

unreasonable. See id. (noting that, under AEDPA, just 

because an appellate court‟s own interpretation of the priorconviction exception is reasonable does not mean that the 

state court‟s reading was unreasonable). “Because AEDPA 

authorizes federal courts to grant relief only when state courts 

act unreasonably, it follows that „the more general the rule‟ at 

issue — and thus the greater the potential for reasoned 

disagreement among fair-minded judges — „the more leeway 

state courts have in reaching outcomes in case-by-case 

determinations.” Renico, 130 S. Ct. at 1864 (quoting 

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In my 

view, the prior-conviction exception is sufficiently general 

and undefined, such that we must, under AEDPA, defer to the 

 

2

I concede that the state court‟s decision in this case 

produced a seemingly inequitable result. We have recognized 

that a guilty plea binds a defendant “to the accuracy of the 

facts set forth in the indictment.” United States v. Parker, 

874 F.2d 174, 177 n.1 (3d Cir. 1989). The state court‟s 

determination would appear to run counter to this principle 

because Garrus was not held to the facts he pled to as part of 

the judicial process related to his 1997 burglary conviction. 

However, Almendarez-Torres simply treats recidivism 

differently. While there is no doubt that the majority‟s moral 

compass is well-aligned, morality cannot trump our duty to 

faithfully apply Supreme Court precedent. 
12

state court. Given the logic of Almendarez-Torres and the 

fact that the Supreme Court has yet to clarify the scope of the 

prior-conviction exception, I simply cannot subscribe to the 

majority‟s finding that the state court‟s decision here was 

objectively unreasonable.

A few additional points bear mentioning. First, the 

majority opinion suffers from an internal inconsistency. 

Relying as it does on Apprendi, a case founded on the Sixth 

Amendment right to a jury trial, one would expect the 

majority to require that a jury determine whether or not 

Garrus‟s prior conviction for burglary qualifies as a crime of 

violence. Yet the majority does the opposite, requiring that 

the judge determine that Garrus‟s prior conviction was 

necessarily not a crime of violence.

Second, the majority notes that “[n]o existing 

precedent so much as hints that [the state court‟s] paradoxical 

interpretation of Apprendi might be reasonable.” (Majority 

Op. at 20.) This point suffers from two flaws. One could 

easily reverse the logic of this statement and assert that no 

Supreme Court precedent suggests that the majority‟s 

interpretation is the only reasonable interpretation. Under 

AEDPA, that is sufficient to uphold the state court‟s 

determination. 

More importantly, the proposition is simply inaccurate. 

The majority makes clear that it is troubled by the fact that 

Garrus pled guilty to second degree burglary only to have a 

judge find facts years later inconsistent with that prior 

conviction and without affording Garrus procedural 

safeguards. In United States v. Santiago, 268 F.3d 151 (2d 

Cir. 2001), then-Judge Sotomayor, writing for the court,

addressed whether the requirement under the federal 
13

recidivism statute, the Armed Career Criminal Act, that the 

defendant have three predicate convictions “committed on 

occasions different from one another,” is a factual issue that 

must be submitted to a jury under Apprendi. Id. at 152. In 

resolving the issue in the negative, Judge Sotomayor stressed 

that courts make determinations all the time in the context of 

recidivism for which the Apprendi procedural safeguards do 

not attach. See id. at 156 (“The determination of „the fact of a 

prior conviction‟ implicitly entails many subsidiary findings, 

not the least of which is that the defendant being sentenced is 

the same defendant who previously was convicted of those 

prior offenses, a fact that could be quite controversial indeed. 

Determination of this question would not necessarily come 

with the „procedural safeguards‟ noted in Apprendi.”). Judge 

Sotomayor went on to conclude:

In short, we read Apprendi as 

leaving to the judge, consistent 

with due process, the task of 

finding not only the mere fact of 

previous convictions but other 

related issues as well. Judges 

frequently must make factual 

determinations for sentencing, so 

it is hardly anomalous to require 

that they also determine the „who, 

what, when, and where‟ of a prior 

conviction.

Id. Santiago refutes the majority‟s unyielding interpretation 

of the phrase “the fact of a prior conviction,” which is even 

more meaningful considering that Santiago was not a case 

decided under the highly deferential AEDPA framework.
14

Finally, there is little doubt that Almendarez-Torres‟s 

continuing vitality is in jeopardy. See Shepard v. United 

States, 544 U.S. 13, 27-28 (2005) (Thomas, J., concurring) 

(“Almendarez-Torres . . . has been eroded by this Court‟s 

subsequent Sixth Amendment jurisprudence, and a majority 

of the Court now recognizes that Almendarez-Torres was 

wrongly decided. . . . [I]n an appropriate case, this Court 

should consider Almendarez-Torres‟ continuing viability.”). 

However, we must apply Almendarez-Torres until the 

Supreme Court holds otherwise. See Hohn v. United States, 

524 U.S. 236, 252-53 (1998) (“Our decisions remain binding 

precedent until we see fit to reconsider them, regardless of 

whether subsequent cases have raised doubts about their 

continuing vitality.”); Rodriguez de Quijas v. Shearson/Am. 

Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of 

this Court has direct application in a case, yet appears to rest 

on reasons rejected in some other line of decisions, the Court 

of Appeals should follow the case which directly controls, 

leaving to this Court the prerogative of overruling its own 

decisions.”).

For these reasons, I respectfully dissent.