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, 20122 Before: McKEE, Chief Judge , SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, J R

. 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 Philadelphi a, 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 Of fice of Chief Counsel 1920 Technology Parkway Mechanicsburg, PA 17050 Counsel for the Secretary of the3 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, an d JORDAN, Circuit Judge s

.
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 c ourt of voluntary manslaughter in 2001. At sentencing, the judge increased his sentence beyond the statutory maximum based on 42 Pa. Cons. Stat. § 9714, Pen nsylvania ‟ 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 the4 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 prescr ibed 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 contra ry 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 maxim um 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, showe d 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 ar guing. 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”) no tified 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 defend ant 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), but6 do not include second degree bur glary (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, second

degree and first

- degree burglary are mutually exclusive. S econd

- degree burglary is burglary that occurs where the structure “is not adapted fo r overnight accommodation and

. . . no individual is presen t 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, first

degree burglary that includes both factors (structure adapted for overnight accommodation and a n individual present) is a

“ crime of violence, ” but second

- degree burglary is not a “crime of violence

. ” See Commonwealth v. Ausberry , 8 91 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 t o 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. C nty. 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 w as his fourth crime of violence. Id . The trial court sentenced Garrus t o 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 Pen nsylvania ‟ 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 20 04, Garrus filed a pro se petition for post

conviction 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 “ c rime 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 (2 005), 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 Career9 Criminal Act (“ACCA”), 18 U.S.C. § 924, a federal recidivism st atute. 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 S hepard , 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 beyo nd 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

cons tituted a “crime of violence,” the Superior Court declined to reach the issue of whether the two 1995 robberies constituted separate crimes. T he Supreme Court of Pennsylvania denied Garrus ‟ s petition seeking further appellate review. Commonwealth v. Garr us , 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 challen ges 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 reli ef 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 applic ation 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 involv ed 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. T he District Court adopted the Magistrate Judge ‟ s recommendation, with the exception that it rejected the Magistrate Judge ‟ s determination that sufficient grounds11 existed to issue a certificate of appealability. Garrus v. Jo hnson , 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

- d egree 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 v iolence, ” 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 op inion 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 state

law ground, we may address [the] federal issue considere d 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 stand ard, 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 sam e 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 o riginal 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 bas ed 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 through13 procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.”)

. These precepts are “rooted in longstanding common

law practice[.]” Cunningham v. California , 549 U.S. 270, 281 (2007). Apprendi recounted their historical context,

no ting 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. Cr ucially, 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 l aws 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 t o constitute a criminal offense

, and (2)

. . . a state scheme that keeps from14 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. 22 4, 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 ‟ i mprisonment. 523 U.S. at 227. Prior to his initial deportation, Almendar ez

- 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. I d . 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 def endant 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 neces sary 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 sentencin g judge did not “change a

pre

- existing definition of a well

- established crime, nor . . .

„ evade ‟ the Constitution, either by „ presuming ‟ guilt or15 „ restructuring ‟ the elements of an offense.” Almendarez

Torres , 523 U.S. at 246.

The Supreme Court found tha t the fact of Almendarez

Torres ‟ 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 w as 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 itse lf, 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 whe ther 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 defenda nt‟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 c rime 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 in17 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

re ceive if punished according to the facts reflected in the jury verdict alone.” Id . at 4 82

- 83.

Apprendi explained that Almendarez

- Torres was “at best an exceptional departure from . . . historic practice” and a “limited” and “narrow” exception based on “u nique 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 convi ctions “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 a pply 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 cas es 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 i ncrease 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 2 52

- 53 (Stevens, J., concurring) ; citin g id. at 253 (Scalia, J., con curring)). 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 co nstitutional 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 tha t the state appellate court decisions affirming that finding were “contrary to, or involved an unreasonable appli cation 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 h abeas 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 unreasonable20 determination of the facts in light of the evidence presented in the State court proceeding.” 6 28 U.S.C. § 2 254(d).

Because the state court identified and relied on the correct governing lega l rule established by Apprendi , we must apply AEDPA ‟ s “unreasonable application” standard. 7 See Williams v. Taylor , 529 U.S. 362, 407

- 08 (2000)

. Under AEDPA ‟ s “unreasonable application” standard, w e “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 o ther

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 li ght 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 200 5 (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 c ourt ‟ 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 “unr easonable 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 unoccupie d 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” except ion, 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 es tablished 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 “unreas onable 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. Mus ladin , 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 cl early 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 reasonabl e 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) (“C ourts may reasonably disagree about some of the prec ise boundaries of the exception.

. . . B ut that does not mean that Apprendi is amorphous. . . . T he judge ‟ s fact

- finding seven years after the 1993 conviction extended beyond any reasonable interpretation of the prior conviction exc eption.”). 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 fact s 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 “unre asonable 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 W illiams , 529 U.S. at 406).24 prior conviction” might be reasonably construed to allow judicial factfinding of a fac t 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 factfindin g 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

c onviction 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 factfind ing 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 stat e court ‟ s decision to apply the prior conviction exception in Garrus ‟ s case, but i ts 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 suppo rting 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. a t 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 deferen tial 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 an d “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 th at 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 (seco nd

- 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. Bec ause 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 br ief 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. a t 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 Almendarez

Torres 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 convict ion 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 convict ion 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 Alme ndarez

- 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 qualifie d 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 generic28 burglary statute that did not differentiate between burglarizing an occupied or unoccupied building, a rea sonable 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 S tates 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 de termination 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 I I. 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

- J udge 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

re lated 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 bu ilding, 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 o f 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 C ourt .”) (citations and internal quotations omitted). More important ly, 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 fo und 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 fact s.30 conviction for second

- degree burglary . Either way, it cannot be reasonably inte rpreted 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 t hreshold 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 ca nnot 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.‟” (quot ing 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 bi nding 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 fe lonies, 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 h ad 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 [t he 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 holdi ng 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 o f 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 di scussion of the Constitution in dicta

, it is that the majority of the C ourt expressed grave constitutional concerns: four justices cited concerns that looking at police reports32 underlying a prior conviction posed “serious risks of unconstitutionality” unde r 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 assum ing 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 o f 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 thi s 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 o ccupied building cannot reasonably be interpreted as a fact consistent with or a fact33 about Garrus‟s conviction for burglarizing an unoccupied building.

Rather than supporting the Commonwealth‟s argument, Shepard demonstrates that even judicial factfindin g 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 pri or 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. Willi ams , 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 demonstrate s that it was reason able for the state court to apply Apprendi to sentence a defendant beyond the statutory maximum based on a fact contradicting a34 prior conviction. 14 In short, none of these cases involve s a judicial finding of fact that contradicted the defendant ‟ s prior

14 C ontrary 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 circumstance s 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 f acts 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 subsidia ry facts about a defendant‟s prior convictions before imposing a35 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 c onsider 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, sen tenced 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 onl y 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 omitt ed). 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 co nviction. 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 necess ary 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 prec i se 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 necessar y 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 beyo nd 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 argument s 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 def endant. 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 7 86 ; 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, effe ctively imposing punishment on the defendant for a first

- degree offense

. Apprendi , 530 U.S.

16 Judge Gre enaway 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 reasonablen ess 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 jurist s 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 bu rglary (under Pennsylvania law) cannot enhance the senten ce 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 reason ably 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 eleme nts 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

a n 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) (fin ding that the state40 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 (findi ng 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 applicat ion” 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 burgla rized 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

- 2041 (2007); see also Horn , 536 U.S. at 272 (“none of our post

AEDPA 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 con clude 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 b e 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 th is case

, and I join his dissent in its entirety. I write separately because I think the reason why the

m ajority 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 Antite rrorism and Effective Death Penalty Act (AEDPA)

, 28 U.S.C. § 22 54

. In twelve years, the Supreme Co urt has granted certiorari in ninety

- four cases arising under AEDPA

, forty

- six of which involved questions of federal court deference to decisions of

state c ourts. 1

1 See Parker v. Ma tthews , 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 , 13 2 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 ( approximately2 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. C t. 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 (2 005); 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); Mi tchell 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 , 1 32 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, t wenty

- two of those cases

— almost fifty percent

— were reversed wi thout dissent

. 3

665 ; Know les , 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 fed eral court to overturn a state court’s decision on the question of unavailability merely because the federal court iden tifies 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 transpar ently that no fairminded jurist could agree with that cour t’s decision, the Sixth Circuit’ s judgment must be reversed.”); Mitts , 131 S. Ct. at 176 5 (holding that the Sixth Circuit erred in finding that the state court’s jury instructions were contrary to c learly 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 i n 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 stat e 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 t he 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 o f 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 Circui t and stating, “b ecause 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 ex planations 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); Middlet on , 541 U.S. at 437

– 38 (holding that the Ninth Circuit erred because the state appellate court’s conclusi on 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 revie w 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 erro r is man ifest 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. S tat. § 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 matter s [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 t he 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 beca use the district court di d not “consider” the 1997 burglary conviction for purposes of

“ determining whether the defendant should be sentenced under Penn sylvania’s ‘three strikes’ law.” Instead, applying 28 U.S.C. § 2254(d)(1), the district court analyzed whether the7 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 direct ly 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 ju ry

— should find facts regarding prior convictions when assessing a defendant’s history of recidivism. B ecause 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 . I nstead, he relied entirely on Apprendi v. New Jersey , 530 U.S. 466 (2000)

. But a s then

- Judge Sotomayor wrote for the Court of Appeals for the Second Circuit, in a case not subject to8 AEDPA’s deferential standard of revie w, “ 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. Santi ago , 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 rulin g 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 determ ine the “ who, what, when, an d where” of a prior conviction.

Id.

If this we re not a case governed by AEDPA and th e 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 ; t hree of the five sitting justices who participated in Apprendi have openly9 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. Richt er , 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 Por talatin v. Graham , 624 F.3d 69 ( 2 d Cir. 20 10) (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 fou nd 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) st atute. 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 toda y should apply if the recidivist issue were contested .”); i d. at 520

– 21 (Thomas, J., concurring) (“[O] ne of the ch ief errors of Almendarez

Torres

— an error to which I succumbed

— was to attempt to discern whether a particular fact is traditionally (or typical ly) a basis for a sentencing court to increase an off ender’ 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 c ourt to construe the Almendarez

- Torres exception to Apprendi narrowly so as to preve nt a sentencing judge from considering the facts underlying a defendant’s prior conviction when forming an opinion about his criminal history. F inding “no clear holding of the Supreme Court to command such a result,” t he 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 unreaso nably applied clearly established federal law. ’” I d. 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

exce ption,” the court concluded :

It might well be constitutional ly 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 crimi nal history justifies “extended incarceration and life

- time supervision.”

. . . The Supreme Court may answer that question at some future time. But, if our Court cannot divin e a clear answer from the Court’ s existing holdings, AEDPA prevents us from fault ing a

state cou rt for selecting one reasonable conclusion over another.11 Id. at 93; s ee 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 th at decision).

The Eighth Circuit reached a similar result in Davis. There, t he 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 th at 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 h ave been decided by the jury, not by the sentencing judge. Th e 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 Circui t’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 d riving 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 reli ed on the information and preliminary hearing transcripts from Wilson’s 1993 convictions to find numerous additional12 facts about the earlier offense s , including that Wilson personally inflicted bodily injury, that the bodil y injury was great, and that his victim was not an accomplice. These factual f indings 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.

T he Ninth Circuit held that the state court’s fact finding

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 : “T he Supreme Court hasn’ t straightened all this out.

. . . AEDPA defer ence can be a bitter pill to swallow. In some habeas cases, we must reject what appear to be valid constitutio nal claims because petitioner’ s rights have not yet been clearly established by the Supreme Court. ” Id. at 1217 (Kozinski, C. J., dissenting) ( ci tations omitted)

. Although it is possible t hat 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 conclu sion 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 Ap peals judges who decided Portalatin and Davis are not “ fairminded

. ” Yarborou gh , 54113 U.S. at 664. Indeed, t he intersection of criminal procedure and constitutional law often presents difficult questions upon which reasonable minds can di ffer

. 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); Almen darez

- Torres , 523 U.S. 224 (5

- 4 decision). And while it is true that

n o Sup reme 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 ove rrules or modifies Almendarez

- Torres , state courts
cannot properly be held to have violated the Constitution when they find facts at sentencing to determine wheth er 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 E ffective D eath P enalty A ct of 1996 (“AEDPA”) , Congress vested the Supreme Court

— and only the Supreme Court

— with the a uthority 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 r ole 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 new ly created authority, the majority wades through murky Supreme Court preceden t and emerges with what it purports to be an un assailable legal principle : that the prior

conviction exception enshrined in Apprendi v. New Jersey

, 530 U.S. 466 (2000)

, forbids a sentencing court from finding facts inconsistent with a prior conviction whe n 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 de ferential 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 prior

conviction exception. This lack of clarity coupled with the inherent t ension between Apprendi and Almendarez

- Torres v. United States , 523 U.S. 224 (1998)

— a controlling case the majority brushes aside as having limited relevance

— belies2 the majority‟s triumphant conclusion that the state court‟s determination was objective ly 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 prefer red 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 . . . s hall 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 S tate 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 applicatio n of, clearly established Federal law, as determined by the3 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 c ourt 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 d ecision 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 identifie s 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 c ourt‟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 unreaso nable 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 d eferential . . . 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

st ate criminal justice systems,‟ and not as a means of error correctio n. ” Greene v. Fisher

, --- U.S.

--- , --- , 132 S. Ct. 38, 43 (2011) (quoting Harrington v. Richter

, --- U.S.

--- , --- , 1 31 S. Ct. 770, 786 (2011) ).

I agree with the majority that the focus of our inquiry is on the “unreasonable” prong because the state cou rt 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 „c ontrary 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 Precede nt 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) (re jecting a circuit court‟s determination that Supreme Court precedent clearly established a categorical rule re garding custodial interrogations of inmates). Recognizing its obligation, t he majority spends pages examining Supreme Court precedent

. Yet nowhere in that examina tion does the majority grapple with precedent that undermines its position . This principled5 avoidance is the only means by which the majority can reach the conclusion that Supreme Court precedent clearly establishes that it would be objectively unreasonab le to interpret the phrase “the fact of a prior conv iction” as the state court did in this case.

I do not disagree with the majority that Apprendi is at the fore front 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 Apprend i .” (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 cou rt‟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 th e 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 wh o had previously been deported after being convicted of an aggravated felony. 523 U.S. at 226. The defendant ple d guilty to being in the United States, without permission, after being deported. Id. At sentencing, the defendant argued that the enhanceme nt should not apply because his three previous convictions for aggravated6 felonies, which the defendant did not contest, were not charged in the current indictment. Id. at 227. The distri ct court rejected this argument , found the existence of the prior

c onvictions, and applied the sentence enhancement. Id. T he 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

—

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

— recidivism

— is a traditional, if not the most traditiona l, basis for a sentencing court‟s increasing an offender‟ s sentence. ”). T he Court noted that, historically, recidivism operated outs ide 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 Gr aham 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 ten7 years, based on a determination by the sentencing court, not the jury , that the crime was racially motivated. 530 U.S. at 47 0

- 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 pe nalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, a nd 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 me ns 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 offe nse‟ itself, New Jersey‟ s biased purpose inquiry goes pre cisely 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 inc orrectly 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 , i t 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 minimiz e 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, t his 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 men s 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 ye ars later in Apprendi

. Almendarez

- Torres

, 523 U.S. at 244 (“[T]o hold that the Constitution requires that recidivism b e deemed an „element‟ of petitioner‟ s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as goin g to the punishment only.” (internal quotation marks and citation omitted)). As a result, it is unsurprising that Apprendi ensured that Almendarez

Torres 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 Almendarez

Torres remains binding precedent. After Apprendi cast doubt on the continui ng 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 off enses under a recidivism statute need not be charged in an indictment and submitted to the jury. See United States v. Weaver , 267 F.3d9 231, 250 (3d Cir. 2001) (“Recently, in Apprendi [], the Court upheld the validity of Almendarez

- Torres . . . .”). We hav e 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 con tinuing constitutional viability post

Apprendi , . . . 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 r ecognize the separate treatment afforded prior convictions in Almendarez

Torres

. 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 2 7, 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 1 012, 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 st ate court‟s determination that Garrus‟s second

- degree burglary conviction could be treated as a first

- degree offense was not objectively un reasonable.
A lmendarez

- Torres established that a sentencing court applying a recidivism statute that carries with it a sente nce above the statutory maximum is permitted to engage in judicial factfinding regarding the defendant‟s prior convictions. In Apprendi , the Cou rt 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 gui dance 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 prior

conviction exception because Apprendi was not, contrary to Almendarez

- Torres , a recidivism case. The prior

- conviction exception r emains 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 fin dings 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 prior

conviction exception

— prohibiting a sentencing court from applying a recidivism s tatute and finding a fact inconsistent with a prior conviction

— is a reasonable interpretation. 2 Under AEDPA, t hat the majority‟s reading was reasonable does not ipso facto render all other r eadings patently unreasonable. See id. (noting that , under AED PA, just because an appellate court‟s own interpretation of the prior

conviction 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 un reasonably, it f

ollows that „the more general the rule‟ at issue

— and thus the greater the potential for reasoned disagre ement 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 d ecision 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. Pa rker

, 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 a nd 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 mentioni ng. 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 pr ior 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, t he majority notes that “[n] o existing

pr ecedent 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. O ne could easily reverse the logic of th is 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 t hat it is troub led by the fact that Garrus ple d g uilty 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 federal13 recidivism statute, the Armed Career Criminal Act , that the defendant have three predicate convictions “committed on occasions different f

rom 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 App rendi 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 previousl y 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 r ead 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 anom alous 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

- T orres ‟ 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, regardl ess 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 reaso ns 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.