LOCKYER, ATTORNEY GENERAL OF CALIFORNIA v. ANDRADE

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
63 OCTOBER TERM, 2002
Syllabus
LOCKYER, ATTORNEY GENERAL OF CALIFORNIA v.
ANDRADE
certiorari to the united states court of appeals for
the ninth circuit
No. 01–1127. Argued November 5, 2002—Decided March 5, 2003
California charged respondent Andrade with two felony counts of petty
theft with a prior conviction after he stole approximately $150 worth of
videotapes from two different stores. Under California’s three strikes
law, any felony can constitute the third strike subjecting a defendant to
a prison term of 25 years to life. The jury found Andrade guilty and
then found that he had three prior convictions that qualified as serious
or violent felonies under the three strikes regime. Because each of his
petty theft convictions thus triggered a separate application of the three
strikes law, the judge sentenced him to two consecutive terms of 25
years to life. In affirming, the California Court of Appeal rejected his
claim that his sentence violated the constitutional prohibition against
cruel and unusual punishment. It found the Solem v. Helm, 463 U. S.
277, proportionality analysis questionable in light of Harmelin v. Michi-
gan, 501 U. S. 957. It then compared the facts in Andrade’s case to
those in Rummel v. Estelle, 445 U. S. 263—in which this Court rejected
a claim that a life sentence was grossly disproportionate to the felonies
that formed the predicate for the sentence, id., at 265—and concluded
that Andrade’s sentence was not disproportionate. The California Su-
preme Court denied discretionary review. The Federal District Court
denied Andrade’s subsequent habeas petition, but the Ninth Circuit
granted him a certificate of appealability and reversed. Reviewing the
case under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), the latter court held that an unreasonable application of
clearly established federal law under 28 U. S. C. § 2254(d)(1) occurs when
there is clear error; concluded that both Solem and Rummel remain
good law and are instructive in applying Harmelin; and found that the
California Court of Appeal’s disregard for Solem resulted in an unrea-
sonable application of clearly established Supreme Court law and was
irreconcilable with Solem, thus constituting clear error.
Held: The Ninth Circuit erred in ruling that the California Court of Ap-
peal’s decision was contrary to, or an unreasonable application of, this
Court’s clearly established law within the meaning of § 2254(d)(1).
Pp. 70–77.

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
64 LOCKYER v. ANDRADE
Syllabus
(a) AEDPA does not require a federal habeas court to adopt any
one methodology in deciding the only question that matters under
§ 2254(d)(1)—whether a state court decision is contrary to, or involved
an unreasonable application of, clearly established federal law. In this
case, this Court does not reach the question whether the state court
erred, but focuses solely on whether habeas relief is barred by
§ 2254(d)(1). Pp. 70–71.
(b) This Court must first decide what constitutes such “clearly estab-
lished” law. Andrade claims that Rummel, Solem, and Harmelin
clearly establish a principle that his sentence is so grossly disproportion-
ate that it violated the Eighth Amendment. Under § 2254(d)(1),
“clearly established Federal law” is the governing legal principle or
principles set forth by this Court at the time a state court renders
its decision. The difficulty with Andrade’s position is that the Court
has not established a clear or consistent path for courts to follow in
determining whether a particular sentence for a term of years can vio-
late the Eighth Amendment. Indeed, the only “clearly established” law
emerging from the Court’s jurisprudence in this area is that a gross
disproportionality principle applies to such sentences. Because the
Court’s cases lack clarity regarding what factors may indicate gross dis-
proportionality, the principle’s precise contours are unclear, applicable
only in the “exceedingly rare” and “extreme” case. Harmelin, supra,
at 1001 (Kennedy, J., concurring in part and concurring in judgment).
Pp. 71–73.
(c) The California Court of Appeal’s decision was not “contrary to, or
involved an unreasonable application of,” the clearly established gross
disproportionality principle. First, a decision is contrary to clearly es-
tablished precedent if the state court applied a rule that contradicts the
governing law set forth in this Court’s cases or confronts facts that
are materially indistinguishable from a Court decision and nevertheless
arrives at a different result. Williams v. Taylor, 529 U. S. 362, 405–
406. Andrade’s sentence implicates factors relevant in both Rummel
and Solem. Because Harmelin and Solem specifically stated that they
did not overrule Rummel, it was not contrary to this Court’s clearly
established law for the state court to turn to Rummel in deciding
whether the sentence was grossly disproportionate. See Harmelin,
supra, at 998 (Kennedy, J.). Also, the facts here fall in between Solem
and Rummel but are not materially indistinguishable from either.
Thus, the state court did not confront materially indistinguishable facts
yet arrive at a different result. Second, under the “unreasonable appli-
cation” clause, a federal habeas court may grant the writ if the state
court identifies the correct governing legal principle but unreasonably
applies it to the facts of the prisoner’s case. Williams v. Taylor, 529

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
65 Cite as: 538 U. S. 63 (2003)
Syllabus
U. S., at 413. The state court decision must be objectively unreason-
able, not just incorrect or erroneous. Id., at 409, 410, 412. Here, the
Ninth Circuit erred in defining “objectively unreasonable” to mean
“clear error.” While habeas relief can be based on an application of a
governing legal principle to a set of facts different from those of the
case in which the principle was announced, the governing legal principle
here gives legislatures broad discretion to fashion a sentence that fits
within the scope of the proportionality principle—the “precise contours”
of which are “unclear.” Harmelin, supra, at 998 (Kennedy, J.). And
it was not objectively unreasonable for the state court to conclude that
these “contours” permitted an affirmance of Andrade’s sentence. Cf.,
e. g., Riggs v. California, 525 U. S. 1114, 1115 (Stevens, J., dissenting
from denial of certiorari). Pp. 73–77.
270 F. 3d 743, reversed.
O’Connor, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Souter, J., filed a
dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined,
post, p. 77.
Douglas P. Danzig, Deputy Attorney General of Califor-
nia, argued the cause for petitioner. With him on the briefs
were Bill Lockyer, Attorney General, pro se, Robert R. An-
derson, Chief Assistant Attorney General, Gary W. Schons,
Senior Assistant Attorney General, and Carl H. Horst, Su-
pervising Deputy Attorney General.
Erwin Chemerinsky argued the cause for respondent.
With him on the brief were Paul Hoffman, Jordan C. Budd,
Steven R. Shapiro, Mark D. Rosenbaum, Daniel P. Tokaji,
and Alan L. Schlosser.*
*Kent S. Scheidegger and Charles L. Hobson filed a brief for the Crimi-
nal Justice Legal Foundation et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the California
Public Defenders Association by Kenneth I. Clayman; for Families to
Amend California’s Three Strikes et al. by Gerald F. Uelmen; for the Na-
tional Association of Criminal Defense Lawyers by Sheryl Gordon Mc-
Cloud; and for Donald Ray Hill by Susan S. Azad and Kathryn M. Davis.
Briefs of amici curiae were filed for the California District Attorneys
Association by Dennis L. Stout and Grover D. Merritt; and for Michael P.
Judge by Albert J. Menaster and Alex Ricciardulli.

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
66 LOCKYER v. ANDRADE
Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
This case raises the issue whether the United States Court
of Appeals for the Ninth Circuit erred in ruling that the
California Court of Appeal’s decision affirming Leandro An-
drade’s two consecutive terms of 25 years to life in prison for
a “third strike” conviction is contrary to, or an unreasonable
application of, clearly established federal law as determined
by this Court within the meaning of 28 U. S. C. § 2254(d)(1).
I
A
On November 4, 1995, Leandro Andrade stole five video-
tapes worth $84.70 from a Kmart store in Ontario, California.
Security personnel detained Andrade as he was leaving the
store. On November 18, 1995, Andrade entered a different
Kmart store in Montclair, California, and placed four video-
tapes worth $68.84 in the rear waistband of his pants.
Again, security guards apprehended Andrade as he was exit-
ing the premises. Police subsequently arrested Andrade for
these crimes.
These two incidents were not Andrade’s first or only en-
counters with law enforcement. According to the state pro-
bation officer’s presentence report, Andrade has been in and
out of state and federal prison since 1982. In January 1982,
he was convicted of a misdemeanor theft offense and was
sentenced to 6 days in jail with 12 months’ probation. An-
drade was arrested again in November 1982 for multiple
counts of first-degree residential burglary. He pleaded
guilty to at least three of those counts, and in April of the
following year he was sentenced to 120 months in prison.
In 1988, Andrade was convicted in federal court of “[t]rans-
portation of [m]arijuana,” App. 24, and was sentenced to
eight years in federal prison. In 1990, he was convicted in
state court for a misdemeanor petty theft offense and was
ordered to serve 180 days in jail. In September 1990, An-
drade was convicted again in federal court for the same fel-

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
67 Cite as: 538 U. S. 63 (2003)
Opinion of the Court
ony of “[t]ransportation of [m]arijuana,” ibid., and was
sentenced to 2,191 days in federal prison. And in 1991,
Andrade was arrested for a state parole violation—escape
from federal prison. He was paroled from the state peniten-
tiary system in 1993.
A state probation officer interviewed Andrade after his
arrest in this case. The presentence report notes:
“The defendant admitted committing the offense. The
defendant further stated he went into the K-Mart Store
to steal videos. He took four of them to sell so he could
buy heroin. He has been a heroin addict since 1977.
He says when he gets out of jail or prison he always does
something stupid. He admits his addiction controls his
life and he steals for his habit.” Id., at 25.
Because of his 1990 misdemeanor conviction, the State
charged Andrade in this case with two counts of petty theft
with a prior conviction, in violation of Cal. Penal Code Ann.
§ 666 (West Supp. 2002). Under California law, petty theft
with a prior conviction is a so-called “wobbler” offense be-
cause it is punishable either as a misdemeanor or as a felony.
Ibid.; cf. Ewing v. California, ante, at 16–17 (plurality opin-
ion). The decision to prosecute petty theft with a prior con-
viction as a misdemeanor or as a felony is in the discretion
of the prosecutor. See ante, at 17. The trial court also has
discretion to reduce the charge to a misdemeanor at the time
of sentencing. See People v. Superior Court of Los Angeles
Cty. ex rel. Alvarez, 14 Cal. 4th 968, 979, 928 P. 2d 1171,
1177–1178 (1997); see also Ewing v. California, ante, at 17.
Under California’s three strikes law, any felony can consti-
tute the third strike, and thus can subject a defendant to a
term of 25 years to life in prison. See Cal. Penal Code Ann.
§ 667(e)(2)(A) (West 1999); see also Ewing v. California,
ante, at 16. In this case, the prosecutor decided to charge
the two counts of theft as felonies rather than misdemeanors.
The trial court denied Andrade’s motion to reduce the of-

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
68 LOCKYER v. ANDRADE
Opinion of the Court
fenses to misdemeanors, both before the jury verdict and
again in state habeas proceedings.
A jury found Andrade guilty of two counts of petty theft
with a prior conviction. According to California law, a jury
must also find that a defendant has been convicted of at least
two serious or violent felonies that serve as qualifying of-
fenses under the three strikes regime. In this case, the jury
made a special finding that Andrade was convicted of three
counts of first-degree residential burglary. A conviction for
first-degree residential burglary qualifies as a serious or vio-
lent felony for the purposes of the three strikes law. Cal.
Penal Code Ann. §§ 667.5, 1192.7 (West 1999); see also Ewing
v. California, ante, at 19. As a consequence, each of An-
drade’s convictions for theft under Cal. Penal Code Ann.
§ 666 (West Supp. 2002) triggered a separate application of
the three strikes law. Pursuant to California law, the judge
sentenced Andrade to two consecutive terms of 25 years
to life in prison. See §§ 667(c)(6), 667(e)(2)(B). The State
stated at oral argument that under the decision announced
by the Supreme Court of California in People v. Garcia, 20
Cal. 4th 490, 976 P. 2d 831 (1999)—a decision that postdates
his conviction and sentence—it remains “available” for An-
drade to “file another State habeas corpus petition” arguing
that he should serve only one term of 25 years to life in
prison because “sentencing courts have a right to dismiss
strikes on a count-by-count basis.” Tr. of Oral Arg. 24.
B
On direct appeal in 1997, the California Court of Appeal
affirmed Andrade’s sentence of two consecutive terms of 25
years to life in prison. It rejected Andrade’s claim that his
sentence violates the constitutional prohibition against cruel
and unusual punishment. The court stated that “the pro-
portionality analysis” of Solem v. Helm, 463 U. S. 277 (1983),
“is questionable in light of ” Harmelin v. Michigan, 501 U. S.
957 (1991). App. to Pet. for Cert. 76. The court then ap-

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
69 Cite as: 538 U. S. 63 (2003)
Opinion of the Court
plied our decision in Rummel v. Estelle, 445 U. S. 263 (1980),
where we rejected the defendant’s claim that a life sentence
was “ ‘grossly disproportionate’ to the three felonies that
formed the predicate for his sentence.” Id., at 265. The
California Court of Appeal then examined Andrade’s claim
in light of the facts in Rummel: “Comparing [Andrade’s]
crimes and criminal history with that of defendant Rummel,
we cannot say the sentence of 50 years to life at issue in this
case is disproportionate and constitutes cruel and unusual
punishment under the United States Constitution.” App. to
Pet. for Cert. 76–77.
After the Supreme Court of California denied discretion-
ary review, Andrade filed a petition for a writ of habeas cor-
pus in Federal District Court. The District Court denied
his petition. The Ninth Circuit granted Andrade a certifi-
cate of appealability as to his claim that his sentence violated
the Eighth Amendment, and subsequently reversed the
judgment of the District Court. 270 F. 3d 743 (2001).
The Ninth Circuit first noted that it was reviewing An-
drade’s petition under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 110 Stat. 1214. Applying its
own precedent, the Ninth Circuit held that an unreasonable
application of clearly established federal law occurs “when
our independent review of the legal question ‘leaves us with
a “firm conviction” that one answer, the one rejected by the
[state] court, was correct and the other, the application of the
federal law that the [state] court adopted, was erroneous—in
other words that clear error occurred.’ ” 270 F. 3d, at 753
(alteration in original) (quoting Van Tran v. Lindsey, 212
F. 3d 1143, 1153–1154 (CA9 2000)).
The court then reviewed our three most recent major prec-
edents in this area—Rummel v. Estelle, supra, Solem v.
Helm, supra, and Harmelin v. Michigan, supra. The Ninth
Circuit “follow[ed] the test prescribed by Justice Kennedy
in Harmelin,” concluding that “both Rummel and Solem
remain good law and are instructive in Harmelin’s applica-

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
70 LOCKYER v. ANDRADE
Opinion of the Court
tion.” 270 F. 3d, at 766. It then noted that the California
Court of Appeal compared the facts of Andrade’s case to the
facts of Rummel, but not Solem. 270 F. 3d, at 766. The
Ninth Circuit concluded that it should grant the writ of ha-
beas corpus because the state court’s “disregard for Solem
results in an unreasonable application of clearly established
Supreme Court law,” and “is irreconcilable with . . . Solem,”
thus constituting “clear error.” Id., at 766–767.
Judge Sneed dissented in relevant part. He wrote that
“[t]he sentence imposed in this case is not one of the ‘exceed-
ingly rare’ terms of imprisonment prohibited by the Eighth
Amendment’s proscription against cruel and unusual punish-
ment.” Id., at 767 (quoting Harmelin v. Michigan, supra,
at 1001 (Kennedy, J., concurring in part and concurring in
judgment)). Under his view, the state court decision up-
holding Andrade’s sentence was thus “not an unreasonable
application of clearly established federal law.” 270 F. 3d, at
772. We granted certiorari, 535 U. S. 969 (2002), and now
reverse.
II
Andrade’s argument in this Court is that two consecutive
terms of 25 years to life for stealing approximately $150 in
videotapes is grossly disproportionate in violation of the
Eighth Amendment. Andrade similarly maintains that the
state court decision affirming his sentence is “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U. S. C. § 2254(d)(1).
AEDPA circumscribes a federal habeas court’s review of
a state court decision. Section 2254 provides:
“(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
71 Cite as: 538 U. S. 63 (2003)
Opinion of the Court
“(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished federal law, as determined by the Supreme Court
of the United States.”
The Ninth Circuit requires federal habeas courts to review
the state court decision de novo before applying the AEDPA
standard of review. See, e. g., Van Tran v. Lindsey, supra,
at 1154–1155; Clark v. Murphy, 317 F. 3d 1038, 1044, n. 3
(CA9 2003). We disagree with this approach. AEDPA
does not require a federal habeas court to adopt any one
methodology in deciding the only question that matters
under § 2254(d)(1)—whether a state court decision is con-
trary to, or involved an unreasonable application of, clearly
established federal law. See Weeks v. Angelone, 528 U. S.
225 (2000). In this case, we do not reach the question
whether the state court erred and instead focus solely on
whether § 2254(d) forecloses habeas relief on Andrade’s
Eighth Amendment claim.
III
A
As a threshold matter here, we first decide what consti-
tutes “clearly established Federal law, as determined by the
Supreme Court of the United States.” § 2254(d)(1). An-
drade relies upon a series of precedents from this Court—
Rummel v. Estelle, supra, Solem v. Helm, 463 U. S.
277 (1983), and Harmelin v. Michigan, 501 U. S. 957
(1991)—that he claims clearly establish a principle that his
sentence is so grossly disproportionate that it violates the
Eighth Amendment. Section 2254(d)(1)’s “clearly estab-
lished” phrase “refers to the holdings, as opposed to the
dicta, of this Court’s decisions as of the time of the relevant
state-court decision.” Williams v. Taylor, 529 U. S. 362, 412
(2000). In other words, “clearly established Federal law”
under § 2254(d)(1) is the governing legal principle or princi-
ples set forth by the Supreme Court at the time the state

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
72 LOCKYER v. ANDRADE
Opinion of the Court
court renders its decision. See id., at 405, 413; Bell v. Cone,
535 U. S. 685, 698 (2002). In most situations, the task of de-
termining what we have clearly established will be straight-
forward. The difficulty with Andrade’s position, however, is
that our precedents in this area have not been a model of
clarity. See Harmelin v. Michigan, 501 U. S., at 965 (opin-
ion of Scalia, J.); id., at 996, 998 (Kennedy, J., concurring in
part and concurring in judgment). Indeed, in determining
whether a particular sentence for a term of years can violate
the Eighth Amendment, we have not established a clear or
consistent path for courts to follow. See Ewing v. Califor-
nia, ante, at 20–23.
B
Through this thicket of Eighth Amendment jurisprudence,
one governing legal principle emerges as “clearly estab-
lished” under § 2254(d)(1): A gross disproportionality princi-
ple is applicable to sentences for terms of years.
Our cases exhibit a lack of clarity regarding what factors
may indicate gross disproportionality. In Solem (the case
upon which Andrade relies most heavily), we stated: “It is
clear that a 25-year sentence generally is more severe than
a 15-year sentence, but in most cases it would be difficult to
decide that the former violates the Eighth Amendment while
the latter does not.” 463 U. S., at 294 (footnote omitted).
And in Harmelin, both Justice Kennedy and Justice
Scalia repeatedly emphasized this lack of clarity: that
“Solem was scarcely the expression of clear . . . constitutional
law,” 501 U. S., at 965 (opinion of Scalia, J.), that in “adher-
[ing] to the narrow proportionality principle . . . our propor-
tionality decisions have not been clear or consistent in all
respects,” id., at 996 (Kennedy, J., concurring in part and
concurring in judgment), that “we lack clear objective stand-
ards to distinguish between sentences for different terms of
years,” id., at 1001 (Kennedy, J., concurring in part and con-
curring in judgment), and that the “precise contours” of the

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
73 Cite as: 538 U. S. 63 (2003)
Opinion of the Court
proportionality principle “are unclear,” id., at 998 (Ken-
nedy, J., concurring in part and concurring in judgment).
Thus, in this case, the only relevant clearly established law
amenable to the “contrary to” or “unreasonable application
of ” framework is the gross disproportionality principle, the
precise contours of which are unclear, applicable only in the
“exceedingly rare” and “extreme” case. Id., at 1001 (Ken-
nedy, J., concurring in part and concurring in judgment) (in-
ternal quotation marks omitted); see also Solem v. Helm,
supra, at 290; Rummel v. Estelle, 445 U. S., at 272.
IV
The final question is whether the California Court of Ap-
peal’s decision affirming Andrade’s sentence is “contrary to,
or involved an unreasonable application of,” this clearly es-
tablished gross disproportionality principle.
First, a state court decision is “contrary to our clearly es-
tablished precedent if the state court applies a rule that con-
tradicts the governing law set forth in our cases” or “if the
state court confronts a set of facts that are materially indis-
tinguishable from a decision of this Court and nevertheless
arrives at a result different from our precedent.” Williams
v. Taylor, supra, at 405–406; see also Bell v. Cone, supra, at
694. In terms of length of sentence and availability of pa-
role, severity of the underlying offense, and the impact of
recidivism, Andrade’s sentence implicates factors relevant in
both Rummel and Solem. Because Harmelin and Solem
specifically stated that they did not overrule Rummel, it was
not contrary to our clearly established law for the California
Court of Appeal to turn to Rummel in deciding whether a
sentence is grossly disproportionate. See Harmelin, supra,
at 998 (Kennedy, J., concurring in part and concurring in
judgment); Solem, supra, at 288, n. 13, 303–304, n. 32. In-
deed, Harmelin allows a state court to reasonably rely on
Rummel in determining whether a sentence is grossly dis-
proportionate. The California Court of Appeal’s decision

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
74 LOCKYER v. ANDRADE
Opinion of the Court
was therefore not “contrary to” the governing legal princi-
ples set forth in our cases.
Andrade’s sentence also was not materially indistinguish-
able from the facts in Solem. The facts here fall in between
the facts in Rummel and the facts in Solem. Solem in-
volved a sentence of life in prison without the possibility of
parole. 463 U. S., at 279. The defendant in Rummel was
sentenced to life in prison with the possibility of parole. 445
U. S., at 267. Here, Andrade retains the possibility of pa-
role. Solem acknowledged that Rummel would apply in a
“similar factual situation.” 463 U. S., at 304, n. 32. And
while this case resembles to some degree both Rummel and
Solem, it is not materially indistinguishable from either.
Cf. Ewing v. California, ante, at 40 (Breyer, J., dissenting)
(recognizing a “twilight zone between Solem and Rummel”).
Consequently, the state court did not “confron[t] a set of facts
that are materially indistinguishable from a decision of this
Court and nevertheless arriv[e] at a result different from our
precedent.” Williams v. Taylor, 529 U. S., at 406.1
1 Justice Souter argues that the possibility of Andrade’s receiving pa-
role in 50 years makes this case similar to the facts in Solem v. Helm, 463
U. S. 277 (1983). Post, at 78–79 (dissenting opinion). Andrade’s sentence,
however, is also similar to the facts in Rummel v. Estelle, 445 U. S. 263
(1980), a case that is also “controlling.” Post, at 78. Given the lack of
clarity of our precedents in Solem, Rummel, and Harmelin v. Michigan,
501 U. S. 957 (1991), we cannot say that the state court’s affirmance of two
sentences of 25 years to life in prison was contrary to our clearly estab-
lished precedent. And to the extent that Justice Souter is arguing that
the similarity of Solem to this case entitles Andrade to relief under the
unreasonable application prong of § 2254(d), we reject his analysis for the
reasons given infra, at 76–77. Moreover, it is not true that Andrade’s
“sentence can only be understood as punishment for the total amount he
stole.” Post, at 78. To the contrary, California law specifically provides
that each violation of Cal. Penal Code Ann. § 666 (West Supp. 2002) trig-
gers a separate application of the three strikes law, if the different felony
counts are “not arising from the same set of operative facts.” § 667(c)(6)
(West 1999); see also § 667(e)(2)(B). Here, Andrade was sentenced to two
consecutive terms under California law precisely because the two thefts

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
75 Cite as: 538 U. S. 63 (2003)
Opinion of the Court
Second, “[u]nder the ‘unreasonable application’ clause, a
federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this
Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Id., at 413. The “unrea-
sonable application” clause requires the state court decision
to be more than incorrect or erroneous. Id., at 410, 412.
The state court’s application of clearly established law must
be objectively unreasonable. Id., at 409.
The Ninth Circuit made an initial error in its “unreason-
able application” analysis. In Van Tran v. Lindsey, 212
F. 3d, at 1152–1154, the Ninth Circuit defined “objectively
unreasonable” to mean “clear error.” These two standards,
however, are not the same. The gloss of clear error fails to
give proper deference to state courts by conflating error
(even clear error) with unreasonableness. See Williams v.
Taylor, supra, at 410; Bell v. Cone, 535 U. S., at 699.
It is not enough that a federal habeas court, in its
“independent review of the legal question,” is left with a
“ ‘firm conviction’ ” that the state court was “ ‘erroneous.’ ”
270 F. 3d, at 753 (quoting Van Tran v. Lindsey, supra, at
1153–1154). We have held precisely the opposite: “Under
§ 2254(d)(1)’s ‘unreasonable application’ clause, then, a federal
habeas court may not issue the writ simply because that
of two different Kmart stores occurring two weeks apart were two dis-
tinct crimes.
Justice Souter, relying on Robinson v. California, 370 U. S. 660
(1962), also argues that in this case, it is “unrealistic” to think that a sen-
tence of 50 years to life for Andrade is not equivalent to life in prison
without parole. Post, at 79. This argument, however, misses the point.
Based on our precedents, the state court decision was not contrary to,
or an unreasonable application of, our clearly established law. Moreover,
Justice Souter’s position would treat a sentence of life without parole
for the 77-year-old person convicted of murder as equivalent to a sentence
of life with the possibility of parole in 10 years for the same person con-
victed of the same crime. Two different sentences do not become materi-
ally indistinguishable based solely upon the age of the persons sentenced.

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
76 LOCKYER v. ANDRADE
Opinion of the Court
court concludes in its independent judgment that the rele-
vant state-court decision applied clearly established federal
law erroneously or incorrectly.” Williams v. Taylor, 529
U. S., at 411. Rather, that application must be objectively
unreasonable. Id., at 409; Bell v. Cone, supra, at 699; Wood-
ford v. Visciotti, 537 U. S. 19, 27 (2002) (per curiam).
Section 2254(d)(1) permits a federal court to grant habeas
relief based on the application of a governing legal principle
to a set of facts different from those of the case in which
the principle was announced. See, e. g., Williams v. Taylor,
supra, at 407 (noting that it is “an unreasonable application
of this Court’s precedent if the state court identifies the cor-
rect governing legal rule from this Court’s cases but unrea-
sonably applies it to the facts of the particular state prison-
er’s case”). Here, however, the governing legal principle
gives legislatures broad discretion to fashion a sentence that
fits within the scope of the proportionality principle—the
“precise contours” of which “are unclear.” Harmelin v.
Michigan, 501 U. S., at 998 (Kennedy, J., concurring in part
and concurring in judgment). And it was not objectively
unreasonable for the California Court of Appeal to conclude
that these “contours” permitted an affirmance of Andrade’s
sentence.
Indeed, since Harmelin, several Members of this Court
have expressed “uncertainty” regarding the application of
the proportionality principle to the California three strikes
law. Riggs v. California, 525 U. S. 1114, 1115 (1999) (Ste-
vens, J., joined by Souter and Ginsburg, JJ., respecting
denial of certiorari) (“[T]here is some uncertainty about how
our cases dealing with the punishment of recidivists should
apply”); see also id., at 1116 (“It is thus unclear how, if at all,
a defendant’s criminal record beyond the requisite two prior
‘strikes’ . . . affects the constitutionality of his sentence”);
cf. Durden v. California, 531 U. S. 1184 (2001) (Souter, J.,
joined by Breyer, J., dissenting from denial of certiorari)
(arguing that the Court should hear the three strikes gross

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
77 Cite as: 538 U. S. 63 (2003)
Souter, J., dissenting
disproportionality issue on direct review because of the “po-
tential for disagreement over application of ” AEDPA).2
The gross disproportionality principle reserves a constitu-
tional violation for only the extraordinary case. In applying
this principle for § 2254(d)(1) purposes, it was not an unrea-
sonable application of our clearly established law for the Cal-
ifornia Court of Appeal to affirm Andrade’s sentence of two
consecutive terms of 25 years to life in prison.
V
The judgment of the United States Court of Appeals for
the Ninth Circuit, accordingly, is reversed.
It is so ordered.
Justice Souter, with whom Justice Stevens, Justice
Ginsburg, and Justice Breyer join, dissenting.
The application of the Eighth Amendment prohibition
against cruel and unusual punishment to terms of years is
articulated in the “clearly established” principle acknowl-
edged by the Court: a sentence grossly disproportionate to
the offense for which it is imposed is unconstitutional. See
ante, at 72–73; Harmelin v. Michigan, 501 U. S. 957 (1991);
Solem v. Helm, 463 U. S. 277 (1983); Rummel v. Estelle, 445
U. S. 263 (1980). For the reasons set forth in Justice
Breyer’s dissent in Ewing v. California, ante, at 35, which
I joined, Andrade’s sentence cannot survive Eighth Amend-
ment review. His criminal history is less grave than Ew-
ing’s, and yet he received a prison term twice as long for a
less serious triggering offense. To be sure, this is a habeas
case and a prohibition couched in terms as general as gross
2 Justice Souter would hold that Andrade’s sentence also violates the
unreasonable application prong of § 2254(d)(1). Post, at 79–82. His rea-
sons, however, do not change the “uncertainty” of the scope of the propor-
tionality principle. We cannot say that the state court decision was an
unreasonable application of this principle.

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
78 LOCKYER v. ANDRADE
Souter, J., dissenting
disproportion necessarily leaves state courts with much lee-
way under the statutory criterion that conditions federal re-
lief upon finding that a state court unreasonably applied clear
law, see 28 U. S. C. § 2254(d). This case nonetheless presents
two independent reasons for holding that the disproportion-
ality review by the state court was not only erroneous but
unreasonable, entitling Andrade to relief. I respectfully dis-
sent accordingly.
The first reason is the holding in Solem, which happens to
be our most recent effort at proportionality review of recidi-
vist sentencing, the authority of which was not left in doubt
by Harmelin, see 501 U. S., at 998. Although Solem is im-
portant for its instructions about applying objective propor-
tionality analysis, see 463 U. S., at 290–292, the case is con-
trolling here because it established a benchmark in applying
the general principle. We specifically held that a sentence
of life imprisonment without parole for uttering a $100 “no
account” check was disproportionate to the crime, even
though the defendant had committed six prior nonviolent fel-
onies. In explaining our proportionality review, we con-
trasted the result with Rummel’s on the ground that the life
sentence there had included parole eligibility after 12 years,
Solem, 463 U. S., at 297.
The facts here are on all fours with those of Solem and
point to the same result. Id., at 279–281. Andrade, like the
defendant in Solem, was a repeat offender who committed
theft of fairly trifling value, some $150, and their criminal
records are comparable, including burglary (though An-
drade’s were residential), with no violent crimes or crimes
against the person. The respective sentences, too, are strik-
ingly alike. Although Andrade’s petty thefts occurred on
two separate occasions, his sentence can only be understood
as punishment for the total amount he stole. The two thefts
were separated by only two weeks; they involved the same
victim; they apparently constituted parts of a single, continu-
ing effort to finance drug sales; their seriousness is measured

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
79 Cite as: 538 U. S. 63 (2003)
Souter, J., dissenting
by the dollar value of the things taken; and the government
charged both thefts in a single indictment. Cf. United
States Sentencing Commission, Guidelines Manual § 3D1.2
(Nov. 2002) (grouping temporally separated counts as one of-
fense for sentencing purposes). The state court accordingly
spoke of his punishment collectively as well, carrying a 50-
year minimum before parole eligibility, see App. to Pet. for
Cert. 77 (“[W]e cannot say the sentence of 50 years to life at
issue in this case is disproportionate”), and because Andrade
was 37 years old when sentenced, the substantial 50-year
period amounts to life without parole. Solem, supra, at 287
(when considering whether a punishment is cruel or unusual
“ ‘the question cannot be considered in the abstract’ ” (quot-
ing Robinson v. California, 370 U. S. 660, 667 (1962))); cf.
Rummel, supra, at 280–281 (defendant’s eligibility for parole
in 12 years informs a proper assessment of his cruel and
unusual punishment claim). The results under the Eighth
Amendment should therefore be the same in each case. The
only ways to reach a different conclusion are to reject the
practical equivalence of a life sentence without parole and
one with parole eligibility at 87, see ante, at 74 (“Andrade
retains the possibility of parole”), or to discount the continu-
ing authority of Solem’s example, as the California court did,
see App. to Pet. for Cert. 76 (“[T]he current validity of the
Solem proportionality analysis is questionable”). The for-
mer is unrealistic; an 87-year-old man released after 50 years
behind bars will have no real life left, if he survives to be
released at all. And the latter, disparaging Solem as a point
of reference on Eighth Amendment analysis, is wrong as a
matter of law.
The second reason that relief is required even under the
§ 2254(d) unreasonable application standard rests on the al-
ternative way of looking at Andrade’s 50-year sentence as
two separate 25-year applications of the three-strikes law,
and construing the challenge here as going to the second,
consecutive 25-year minimum term triggered by a petty

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
80 LOCKYER v. ANDRADE
Souter, J., dissenting
theft.1 To understand why it is revealing to look at the
sentence this way, it helps to recall the basic difficulty inher-
ent in proportionality review. We require the comparison
of offense and penalty to disclose a truly gross disproportion-
ality before the constitutional limit is passed, in large part
because we believe that legislatures are institutionally
equipped with better judgment than courts in deciding what
penalty is merited by particular behavior. Solem, supra, at
290. In this case, however, a court is substantially aided in
its reviewing function by two determinations made by the
State itself.
The first is the State’s adoption of a particular penalogical
theory as its principal reason for shutting a three-strikes de-
fendant away for at least 25 years. Although the State al-
ludes in passing to retribution or deterrence (see Brief for
Petitioner 16, 24; Reply Brief for Petitioner 10), its only seri-
ous justification for the 25-year minimum treats the sentence
as a way to incapacitate a given defendant from further
crime; the underlying theory is the need to protect the public
from a danger demonstrated by the prior record of violent
and serious crime. See Brief for Petitioner 17 (“significant
danger to society such that [defendant] must be imprisoned
for no less than twenty-five years to life”); id., at 21 (“statute
carefully tailored to address . . . defendants that pose the
greatest danger”); id., at 23 (“isolating such a defendant
for a substantial period of time”); Reply Brief for Petitioner
11 (“If Andrade’s reasoning were accepted, however, Cali-
fornia would be precluded from incapacitating him”). See
also Rummel, 445 U. S., at 284 (“purpose of a recidivist
1 This point is independent of the fact, recognized by the Court, ante, at
68, that it remains open to Andrade to appeal his sentence under People
v. Garcia, 20 Cal. 4th 490, 976 P. 2d 831 (1999) (holding trial court may
dismiss strikes on a count-by-count basis; such discretion is consistent with
mandatory consecutive sentencing provision).

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
81 Cite as: 538 U. S. 63 (2003)
Souter, J., dissenting
statute . . . [is] to segregate”).2 The State, in other words
has not chosen 25 to life because of the inherent moral or
social reprehensibility of the triggering offense in isolation;
the triggering offense is treated so seriously, rather, because
of its confirmation of the defendant’s danger to society and
the need to counter his threat with incapacitation. As to
the length of incapacitation, the State has made a second
helpful determination, that the public risk or danger posed
by someone with the specified predicate record is generally
addressed by incapacitation for 25 years before parole eligi-
bility. Cal. Penal Code Ann. § 667(e)(2)(A)(ii) (West 1999).
The three-strikes law, in sum, responds to a condition of the
defendant shown by his prior felony record, his danger to
society, and it reflects a judgment that 25 years of incapacita-
tion prior to parole eligibility is appropriate when a defend-
ant exhibiting such a condition commits another felony.
Whether or not one accepts the State’s choice of penalogi-
cal policy as constitutionally sound, that policy cannot rea-
2 Implicit in the distinction between future dangerousness and repunish-
ment for prior crimes is the notion that the triggering offense must, within
some degree, be substantial enough to bear the weight of the sentence it
elicits. As triggering offenses become increasingly minor and recidivist
sentences grow, the sentences advance toward double jeopardy violations.
When defendants are parking violators or slow readers of borrowed li-
brary books, there is not much room for belief, even in light of a past
criminal record, that the State is permanently incapacitating the defend-
ant because of future dangerousness rather than resentencing for past
offenses.
That said, I do not question the legitimacy of repeatedly sentencing a
defendant in light of his criminal record: the Federal Sentencing Guide-
lines provide a prime example of how a sentencing scheme may take into
account a defendant’s criminal history without resentencing a defendant
for past convictions, Witte v. United States, 515 U. S. 389, 403 (1995) (the
triggering offense determines the range of possible sentences, and the past
criminal record affects an enhancement of that sentence). The point is
merely that the triggering offense must reasonably support the weight of
even the harshest possible sentences.

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
82 LOCKYER v. ANDRADE
Souter, J., dissenting
sonably justify the imposition of a consecutive 25-year mini-
mum for a second minor felony committed soon after the first
triggering offense. Andrade did not somehow become twice
as dangerous to society when he stole the second handful
of videotapes; his dangerousness may justify treating one
minor felony as serious and warranting long incapacitation,
but a second such felony does not disclose greater danger
warranting substantially longer incapacitation. Since the
defendant’s condition has not changed between the two
closely related thefts, the incapacitation penalty is not open
to the simple arithmetic of multiplying the punishment by
two, without resulting in gross disproportion even under the
State’s chosen benchmark. Far from attempting a novel
penal theory to justify doubling the sentence, the California
Court of Appeal offered no comment at all as to the particu-
lar penal theory supporting such a punishment. App. to Pet.
for Cert. 76–79. Perhaps even more tellingly, no one could
seriously argue that the second theft of videotapes provided
any basis to think that Andrade would be so dangerous after
25 years, the date on which the consecutive sentence would
begin to run, as to require at least 25 years more. I know
of no jurisdiction that would add 25 years of imprisonment
simply to reflect the fact that the two temporally related
thefts took place on two separate occasions, and I am not
surprised that California has found no such case, not even
under its three-strikes law. Tr. of Oral Arg. 52 (State’s
counsel acknowledging “I have no reference to any 50-year-
to-life sentences based on two convictions”). In sum, the
argument that repeating a trivial crime justifies doubling a
25-year minimum incapacitation sentence based on a threat
to the public does not raise a seriously debatable point on
which judgments might reasonably differ. The argument
is irrational, and the state court’s acceptance of it in re-
sponse to a facially gross disproportion between triggering
offense and penalty was unreasonable within the meaning
of § 2254(d).

538US1 Unit: $U29 [10-28-04 13:20:12] PAGES PGT: OPIN
83 Cite as: 538 U. S. 63 (2003)
Souter, J., dissenting
This is the rare sentence of demonstrable gross dispropor-
tionality, as the California Legislature may well have recog-
nized when it specifically provided that a prosecutor may
move to dismiss or strike a prior felony conviction “in the
furtherance of justice.” Cal. Penal Code Ann. § 667(f)(2)
(West 1999). In this case, the statutory safeguard failed,
and the state court was left to ensure that the Eighth
Amendment prohibition on grossly disproportionate sen-
tences was met. If Andrade’s sentence is not grossly dispro-
portionate, the principle has no meaning. The California
court’s holding was an unreasonable application of clearly es-
tablished precedent.