Nakia Garrus v. Secretary PA Dept Corr ( 2012 )


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  •                                     PRECEDENTIAL
    
      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                   ______
    
                     No. 09-3586
                       ______
    
            NAKIA WILLIAM GARRUS,
    
                                   Appellant
    
                          v.
    
     *SECRETARY OF THE PENNSYLVANIA
       DEPARTMENT OF CORRECTIONS;
       THE DISTRICT ATTORNEY OF THE
         COUNTY OF PHILADELPHIA;
      THE ATTORNEY GENERAL FOR THE
          STATE OF PENNSYLVANIA
    
       *Pursuant to Rule 43(c), Fed. R. App. P.
                       ______
    
    On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
                (D.C. No. 2-07-cv-00187)
     District Judge: Honorable Timothy J. Savage
                        ______
    
            Argued En Banc May 30, 2012
       Before: McKEE, Chief Judge, SLOVITER, SCIRICA,
            RENDELL, AMBRO, FUENTES, SMITH,
         FISHER, CHAGARES, JORDAN, HARDIMAN,
       GREENAWAY, JR. and VANASKIE, Circuit Judges.
    
                    (Filed: September 21, 2012)
    
    David R. Fine
    Anthony R. Holtzman (ARGUED)
    K&L Gates
    17 North Second Street, 18th Floor
    Harrisburg, PA 17101
           Counsel for Appellant
    
    Thomas W. Dolgenos (ARGUED)
    David C. Glebe
    Philadelphia County Office of District Attorney
    3 South Penn Square
    Philadelphia, PA 19107
          Counsel for the Secretary of the
          Pennsylvania Department of
          Corrections, the District Attorney of the
          County of Philadelphia and the Attorney
          General for the State of Pennsylvania
    
    Robert M. Wolff
    Pennsylvania Department of Corrections
    Office of Chief Counsel
    1920 Technology Parkway
    Mechanicsburg, PA 17050
           Counsel for the Secretary of the
    
    
                                  2
          Pennsylvania Department of
          Corrections
    
    Robert M. Falin
    Montgomery County Office of District Attorney
    P.O. Box 311
    Norristown, PA 19404
           Counsel for the District Attorney of the
           County of Philadelphia and the Attorney
           General for the State of Pennsylvania
                                ______
    
                    OPINION OF THE COURT
                            ______
    
    FISHER, Circuit Judge, joined by McKEE, Chief Judge, and
    SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES,
    SMITH, and JORDAN, Circuit Judges.
    
           William Garrus (“Garrus”), a Pennsylvania state
    prisoner, seeks federal habeas relief under 28 U.S.C. § 2254,
    as amended by the Anti-Terrorism and Effective Death
    Penalty Act of 1996 (“AEDPA”). Garrus was found guilty in
    state court of voluntary manslaughter in 2001. At sentencing,
    the judge increased his sentence beyond the statutory
    maximum based on 42 Pa. Cons. Stat. § 9714, Pennsylvania‟s
    “three strikes” law. In order to do so, the judge made a
    judicial finding that Garrus had previously been convicted of
    burglarizing an occupied building, when, in fact, he had only
    pled guilty to, and been convicted of, second degree burglary
    (which, under Pennsylvania law, necessarily requires that the
    
    
                                 3
    burglarized building was unoccupied). In the habeas petition
    now before us, Garrus argues that this judicial factfinding
    violated the rule of Apprendi v. New Jersey, requiring that
    “[o]ther than the fact of a prior conviction, any fact that
    increases the penalty for a crime beyond the prescribed
    statutory maximum must be submitted to a jury, and proved
    beyond a reasonable doubt.” 
    530 U.S. 466
    , 490 (2000). The
    District Court denied the petition on the basis that the highest
    state court determination upholding Garrus‟s sentence was
    not contrary to or an unreasonable application of clearly
    established Federal law.
    
            Key to our determination is a single question:
    whether, pursuant to AEDPA, the state court unreasonably
    applied Apprendi by allowing Garrus to be sentenced beyond
    the statutory maximum based on a judicial finding that Garrus
    burglarized an occupied building, despite his plea to the
    contrary.1 For the reasons set forth below, we hold that the
    state court determination upholding Garrus‟s sentence was
    objectively unreasonable, and that Garrus is entitled to habeas
    relief. Accordingly, we will reverse the order of the District
    Court.
    
    
           1
             We agree with Judge Hardiman that the order for
    rehearing en banc misstated the issue. Dissenting Op. of
    Hardiman, J. at Part I; Order at 1-2, Garrus v. Secretary of the
    Pa. Dep’t of Corr., No. 09-3586 (3d. Cir. Feb. 24, 2012).
    Nonetheless, the parties have briefed and argued, and we now
    analyze, the proper question in this case, which is stated
    above.
    
    
                                   4
                                       I.
    
            On February 10, 2000, Garrus was at the home of his
    girlfriend, Toi Bryant, with whom he has a daughter, when
    Bryant‟s ex-boyfriend, Charles Goode, showed up at the
    residence. Shortly after Goode arrived, an argument ensued
    between him and Bryant involving their child. As the
    argument escalated, Garrus took his daughter upstairs. He
    later returned downstairs to the kitchen where Goode and
    Bryant were arguing. After Garrus and Goode exchanged
    some heated words, a fight broke out between the two men.
    Garrus picked up a kitchen knife and stabbed Goode several
    times in the chest area. Goode broke away from Garrus and
    ran upstairs to the bathroom. Garrus left the home. When
    police arrived, both Goode and Bryant identified Garrus as
    the attacker. Goode later died from his injuries.
    
           Following a jury trial in the Philadelphia County Court
    of Common Pleas, Garrus was convicted on March 9, 2001,
    of voluntary manslaughter and possession of an instrument of
    crime. A conviction for voluntary manslaughter carries a
    maximum sentence of 20 years of imprisonment. 18 Pa.
    Cons. Stat. §§ 1103, 2503(c). However, the Commonwealth
    of Pennsylvania (the “Commonwealth”) notified the trial
    court that it would seek a sentencing enhancement under
    Pennsylvania‟s “three strikes” law, which requires a judge to
    sentence a defendant to a minimum term of 25 years‟
    imprisonment (and a maximum of up to life imprisonment) if
    the defendant was previously convicted of two or more
    separate “crimes of violence.” 42 Pa. Cons. Stat. § 9714.
    “Crimes of violence” may include first degree burglary
    (defined as, inter alia, burglary of an occupied structure), but
    
                                   5
    do not include second degree burglary (defined as, inter alia,
    burglary of an unoccupied structure).2
    
           On April 30, 2001, the trial court held the first of two
    sentencing hearings. The Commonwealth offered evidence
    
           2
              A burglary is only a “crime of violence” when it is
    “burglary of a structure adapted for overnight accommodation
    in which at the time of the offense any person is present[.]”
    42 Pa. Cons. Stat. § 9714. Under Pennsylvania law, second-
    degree and first-degree burglary are mutually exclusive.
    Second-degree burglary is burglary that occurs where the
    structure “is not adapted for overnight accommodation and
    . . . no individual is present at the time of entry[.]” 18 Pa.
    Cons. Stat. § 3502(c)(2). First-degree burglary, on the other
    hand, occurs where the structure is adapted for overnight
    accommodation, or if an individual is present at the time of
    entry. 18 Pa. Cons. Stat. § 3502. By definition, then, first-
    degree burglary that includes both factors (structure adapted
    for overnight accommodation and an individual present) is a
    “crime of violence,” but second-degree burglary is not a
    “crime of violence.” See Commonwealth v. Ausberry, 
    891 A.2d 752
    , 756 n.3 (Pa. Super. Ct. 2006) (“[T]he definition of
    a crime of violence . . . corresponds to the definition of first
    degree burglary as set forth in section 3502(c)(1) and
    3502(c)(2).” (quoting Commonwealth v. Guilford, 
    861 A.2d 365
    , 375 (Pa. Super. Ct. 2004))); Guilford, 861 A.2d at 375
    (“[T]he section 9714(g) definition of burglary as a crime of
    violence corresponds to the definition of burglary as a first
    degree felony,” and thus, second-degree burglary “is not a
    crime of violence pursuant to section 9714(g).”).
    
    
                                   6
    that Garrus had three prior convictions for “crimes of
    violence:” (1) a January 1995 conviction for first-degree
    robbery; (2) a February 1995 conviction for first-degree
    robbery; and (3) a February 1997 plea and conviction for
    second-degree burglary. The Commonwealth argued that
    although Garrus had only pled guilty to second degree
    burglary in 1997, the trial court should consider a police
    report and witness statements regarding that burglary to find
    instead that the building Garrus had burglarized in 1997 was
    occupied. On the basis of the police report and witness
    statements, the trial court found at the second sentencing
    hearing on May 8, 2001, that Garrus‟s prior 1997 conviction
    for second-degree burglary constituted a crime of violence
    under § 9714. Commonwealth v. Garrus, June Term 2000
    No. 0092, slip op. at 17 (Phila. Cnty. Ct. Com. Pl. Jan. 16,
    2002). Additionally, it found that the two 1995 robberies
    constituted two separate crimes of violence, and that his
    conviction for voluntary manslaughter was his fourth crime of
    violence. Id. The trial court sentenced Garrus to a term of 25
    to 50 years‟ imprisonment. Id.
    
            Garrus appealed his conviction and sentence to the
    Superior Court of Pennsylvania.3 He argued that, by
    definition, his 1997 second-degree burglary conviction did
    not constitute a “crime of violence” under Pennsylvania‟s
    “three strikes” law. The Superior Court of Pennsylvania
    
          3
            On appeal in this Court, Garrus challenges only his
    sentence under Pennsylvania‟s “three strikes” law.
    Accordingly, we refer solely to the prior resolution of this
    claim.
    
    
                                  7
    adopted the trial court‟s opinion in its entirety.
    Commonwealth v. Garrus, No. 2592 EDA 2001 (Pa. Super.
    Ct. Oct. 18, 2002). The Supreme Court of Pennsylvania
    granted Garrus‟s petition seeking allocatur on the sole issue
    of Garrus‟s sentence, Commonwealth v. Garrus, 
    817 A.2d 455
     (Pa. 2003), but later dismissed the appeal in September
    2003 as having been improvidently granted. Commonwealth
    v. Garrus, 
    832 A.2d 1063
     (Pa. 2003).
    
           In April 2004, Garrus filed a pro se petition for 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 “crime of violence,” rendering him ineligible
    for the 25-year mandatory minimum sentence he had
    received.
    
           Garrus‟s PCRA petition was dismissed in February
    2005. A month later, the Supreme Court rendered a decision
    in Shepard v. United States, 
    544 U.S. 13
     (2005), in which the
    Court held that a sentencing court is not permitted to consider
    police reports in determining whether a prior conviction
    constituted a “violent crime” under the Armed Career
    
                                   8
    Criminal Act (“ACCA”), 18 U.S.C. § 924, a federal
    recidivism statute. Id. at 16, 26.
    
           On appeal from the denial of his PCRA petition,
    Garrus argued that the sentencing court‟s consideration of the
    police report and victim statement, with respect to his 1997
    burglary conviction, violated his rights under Apprendi and
    Shepard, and he again argued that his two 1995 robbery
    convictions constituted one “crime of violence.”           The
    Superior Court of Pennsylvania affirmed the denial of his
    PCRA petition. Commonwealth v. Garrus, No. 961 EDA
    2005 (Pa. Super. Ct. Apr. 18, 2006). In its opinion, the
    Superior Court acknowledged that Apprendi requires that
    “any fact (other than prior conviction) that increases the
    maximum penalty for a crime must be charged in an
    indictment, submitted to a jury, and proven beyond a
    reasonable doubt.” Id. at 8-9 (quoting Apprendi, 530 U.S. at
    476). However, it determined that the prior conviction
    exception permitted the sentencing judge to find that Garrus
    had burglarized an occupied building despite his plea to the
    contrary, and to sentence him beyond the statutory maximum
    accordingly. The Superior Court also determined that the
    Supreme Court‟s decision in Shepard did not affect the
    validity of the prior conviction exception established in
    Apprendi. Finally, on the basis that the 1997 burglary
    constituted a “crime of violence,” the Superior Court declined
    to reach the issue of whether the two 1995 robberies
    constituted separate crimes.        The Supreme Court of
    Pennsylvania denied Garrus‟s petition seeking further
    appellate review. Commonwealth v. Garrus, 
    906 A.2d 639
    (Pa. Aug. 29, 2006) (table).
    
    
                                  9
           On January 16, 2007, Garrus filed a petition for writ of
    habeas corpus in the United States District Court for the
    Eastern District of Pennsylvania, pursuant to 28 U.S.C.
    § 2254. Garrus raised the same challenges to both his 1997
    burglary conviction and the two 1995 robbery convictions.
    The Magistrate Judge denied Garrus‟s petition, Garrus v.
    Mazurkiewicz, No. 07-187 (E.D. Pa. May 28, 2008), and
    concluded that it was precluded from granting federal habeas
    relief because the sentencing court‟s consideration of the
    police report and victim statement in determining whether
    Garrus had two prior convictions for crimes of violence under
    Pennsylvania‟s “three strikes” law was not contrary to, or an
    unreasonable application of, clearly established Supreme
    Court precedent. Id. at 38-39.
    
           The Magistrate Judge also concluded that Garrus‟s
    argument that his two 1995 robbery convictions should be
    considered as one for purposes of the recidivism statute was
    therefore moot, as Garrus still had at least two prior
    convictions for crimes of violence – the 1997 burglary
    conviction and at least one of the 1995 robbery convictions.
    In any event, the Magistrate Judge reasoned, Garrus‟s
    challenge to the 1995 robbery convictions involved an
    interpretation of state law and could not be considered by
    federal courts in a habeas petition.
    
          Nevertheless, the Magistrate Judge recommended that
    the District Court issue a certificate of appealability to this
    Court, limited to the issue involving the 1997 burglary
    conviction. The District Court adopted the Magistrate
    Judge‟s recommendation, with the exception that it rejected
    the Magistrate Judge‟s determination that sufficient grounds
    
                                  10
    existed to issue a certificate of appealability. Garrus v.
    Johnson, No. 07-187 (E.D. Pa. Aug. 18, 2009). Garrus
    appealed, and on March 12, 2010, we granted a certificate of
    appealability to consider the issue of whether the state
    sentencing court violated Garrus‟s constitutional rights by
    labeling the 1997 second-degree burglary conviction a “crime
    of violence” for purposes of applying Pennsylvania‟s “three
    strikes” law.
    
                                   II.
    
           The District Court had jurisdiction to consider
    Garrus‟s habeas petition pursuant to 28 U.S.C. § 2254, as the
    claim raised in the petition has been properly exhausted in the
    state courts. See Alston v. Redman, 
    34 F.3d 1237
    , 1242 (3d
    Cir. 1994).4 We have jurisdiction to review the District
           4
              Our review of Garrus‟s claim is not barred by the
    adequate and independent state ground doctrine. See Harris
    v. Reed, 
    489 U.S. 255
    , 262 (1989). In its PCRA opinion, the
    Pennsylvania Superior Court noted that Garrus might have
    “three strikes” against him even without counting the
    burglary charge as a “crime of violence,” but it failed to
    clearly decide the issue, relying instead on the finding that the
    burglary charge comprised one of the three necessary strikes.
    Commonwealth v. Garrus, No. 961 EDA 2005, slip op. at 10-
    11 (Pa. Super. Ct. Apr. 18, 2006). That opinion was the last
    state court decision on the merits, see Greene v. Fisher, 
    132 S. Ct. 38
    , 43-45 (2011), and because it did not “clearly
    express[] . . . reliance on an adequate and independent state-
    law ground, we may address [the] federal issue considered by
    the state court.” Harris, 489 U.S. at 263.
    
                                   11
    Court‟s judgment pursuant to 28 U.S.C. §§ 1291 and 2253.
    We exercise de novo review over a District Court‟s denial of
    habeas relief, Vega v. United States, 
    493 F.3d 310
    , 314 (3d
    Cir. 2007), and apply the highly deferential AEDPA standard,
    which, in this case, precludes us from granting habeas relief
    unless the challenged state court decision was “contrary to, or
    involved an unreasonable application of, clearly established
    Federal law[.]” 28 U.S.C. § 2254(d)(1).
    
                                 III.
    
           Core to a criminal defendant‟s constitutional rights is
    the principle that “criminal convictions [must] rest upon a
    jury determination that the defendant is guilty of every
    element of the crime with which he is charged, beyond a
    reasonable doubt.” United States v. Gaudin, 
    515 U.S. 506
    ,
    510 (1995); see also In re Winship, 
    397 U.S. 358
    , 364 (1970).
    In Apprendi, the Supreme Court held that this same right
    applies to a sentencing factor that would increase a
    defendant‟s sentence beyond the statutory maximum because,
    like an element of a separate crime, such a sentencing factor
    results in a higher sentence than that which could be
    prescribed for the original crime. 530 U.S. at 476, 490.
    Thus, there is no “principled basis” for treating such a
    sentencing factor differently than an element of a crime. Id.
    at 476. The exception is that a judge can increase the
    sentence beyond the statutory maximum based on “the fact of
    a prior conviction” because a prior conviction has already
    been established through procedural safeguards. Id. at 488-
    90; Jones v. United States, 
    526 U.S. 227
    , 249 (1999) (“[A]
    prior conviction must itself have been established through
    
    
                                  12
    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,
    noting that early on in our history, judges had “very little
    explicit discretion in sentencing.” 530 U.S. at 479. Any
    “circumstances mandating a particular punishment” had to be
    charged to the jury in the indictment; there was “[no]
    distinction between an „element‟ of a felony offense and a
    „sentencing factor[.]‟” Id. at 478, 480. In the 19th century,
    this idea began to shift, “from statutes providing fixed-term
    sentences to those providing judges discretion within a
    permissible range[.]” Id. at 481. Crucially, this shift “has
    been regularly accompanied by the qualification that [such
    judicial] discretion was bound by the range of sentencing
    options prescribed by the legislature.” Id.
    
           By the late 20th century, the Supreme Court began to
    address state laws that increased a defendant‟s punishment
    based on factors found at sentencing, rather than based on
    factors found at trial. In McMillan v. Pennsylvania, 
    477 U.S. 79
     (1986), the Supreme Court, “for the first time, coined the
    term „sentencing factor‟ to refer to a fact that was not found
    by a jury but that could affect the sentence imposed by the
    judge.” Apprendi, 530 U.S. at 485 (construing McMillan).
    Consistent with longstanding constitutional principles,
    McMillan held that a “sentencing factor” must at times be
    found by a jury because “(1) constitutional limits exist to
    States‟ authority to define away facts necessary to constitute a
    criminal offense, and (2) . . . a state scheme that keeps from
    
                                  13
    the jury facts that „expos[e] [defendants] to greater or
    additional punishment,‟ may raise serious constitutional
    concern[s].” Apprendi, 530 U.S. at 486 (quoting McMillan,
    477 U.S. at 85-88) (internal citations omitted).
    
           A decade later, the Supreme Court decided
    Almendarez-Torres v. United States, 
    523 U.S. 224
    , 242-47
    (1998), a case in which the defendant was convicted for his
    presence in the United States after being deported, a violation
    which normally carried a maximum of two years‟
    imprisonment. 523 U.S. at 227. Prior to his initial
    deportation, Almendarez-Torres was convicted of three
    aggravated felonies, and according to the sentencing statute,
    where the original deportation had occurred subsequent to an
    aggravated felony, the court could impose a maximum
    sentence of up to twenty years‟ imprisonment. Id. at 227,
    229. Almendarez-Torres argued that he could not be subject
    to more than two years‟ imprisonment, because his indictment
    had not mentioned his earlier aggravated felony convictions.
    Id. at 227. Importantly, there was no contention that the
    defendant had not been convicted of the three aggravated
    felonies, but only that the fact of his prior convictions should
    have been included in the indictment and charged to the jury.
    Id. Thus, Almendarez-Torres had earlier been convicted of
    the facts necessary for the sentencing enhancement, “pursuant
    to proceedings with substantial procedural safeguards of their
    own[.]” Apprendi, 530 U.S. at 488. In other words, by
    judicially finding that Almendarez-Torres‟s three prior
    convictions existed, the sentencing judge did not “change a
    pre-existing definition of a well-established crime, nor . . .
    „evade‟ the Constitution, either by „presuming‟ guilt or
    
    
                                  14
    „restructuring‟ the elements of an offense.”      Almendarez-
    Torres, 523 U.S. at 246.
    
           The Supreme Court found that 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 was
    permitted because “a prior conviction must itself have been
    established through procedures satisfying the fair notice,
    reasonable doubt, and jury trial guarantees.” Jones, 526 U.S.
    at 249. In Jones, the trial court gave the defendant a sentence
    beyond the statutory maximum based on a judicial finding
    
           5
            Judge Greenaway asserts that the Almendarez-Torres
    rule “remains . . . amorphous and undefined[.]” Dissenting
    Op. of Greenaway, J. at Part III. However, as explained
    above, even in Almendarez-Torres itself, the Supreme Court
    did not allow carte blanche factfinding related to recidivism.
    523 U.S. at 242-46. Thus, the holding of Almendarez-Torres
    has never been as broad as Judge Greenaway suggests.
    
    
                                  15
    that the carjacking offense he was convicted of involved
    “serious bodily injury.” Id. at 230-31. The Supreme Court
    found that the carjacking statute required a jury, rather than a
    judge, to determine whether the crime involved “serious
    bodily injury,” citing “grave” constitutional questions that
    would arise if the statute were to be interpreted otherwise. Id.
    at 231, 239. Although Jones did not actually reach the
    constitutional issue, its explanation of Almendarez-Torres and
    its constitutional discussion were significant, especially given
    that Apprendi explicitly “confirm[ed] the opinion . . .
    expressed in Jones[,]” 530 U.S. at 490, that “under the Due
    Process Clause of the Fifth Amendment and the notice and
    jury trial guarantees of the Sixth Amendment, any fact (other
    than prior conviction) that increases the maximum penalty for
    a crime must be charged in an indictment, submitted to a jury,
    and proven beyond a reasonable doubt.” 530 U.S. at 476
    (quoting Jones, 526 U.S. at 243 n.6).
    
            Against this historical backdrop, the Supreme Court
    decided Apprendi, where a defendant pled guilty to unlawful
    possession of a weapon, a second-degree offense punishable
    by up to ten years‟ imprisonment. Despite the defendant‟s
    plea and conviction for a second-degree offense, the trial
    court sentenced him to twelve years‟ imprisonment, a
    “punishment identical to that . . . provide[d] for crimes of the
    first degree,” based on a judicial finding pursuant to a New
    Jersey hate crime sentencing enhancement, “that the
    defendant‟s „purpose‟ for unlawfully possessing the weapon
    was „to intimidate‟ his victim on the basis of a particular
    characteristic the victim possessed.” 530 U.S. at 468-69, 471,
    491. The Apprendi Court began by stating that “[a]t stake in
    
    
                                  16
    this case are constitutional protections of surpassing
    importance: the proscription of any deprivation of liberty
    without „due process of law,‟ Amdt. 14, and the guarantee
    that „[i]n all criminal prosecutions, the accused shall enjoy the
    right to a speedy and public trial, by an impartial jury[.]‟”
    530 U.S. at 476-77. It then discussed several centuries of
    precedent, summarizing that a criminal defendant may not be
    “expose[d] . . . to a penalty exceeding the maximum he would
    receive if punished according to the facts reflected in the jury
    verdict alone.” Id. at 482-83.
    
            Apprendi explained that Almendarez-Torres was “at
    best an exceptional departure from . . . historic practice” and a
    “limited” and “narrow” exception based on “unique facts[.]”
    Id. at 487, 488 n.14, 489-90. Twice in its opinion, the
    Apprendi Court emphasized that Almendarez-Torres was
    different because “Almendarez-Torres had admitted the three
    earlier convictions for aggravated felonies[,]” and those prior
    convictions “had been entered pursuant to proceedings with
    substantial procedural safeguards of their own[.]” Id. at 488;
    see also id. (reiterating the same points). Thus, “no question
    concerning the right to a jury trial or the standard of proof
    that would apply to a contested issue of fact was before the
    Court.” Id.
    
          Having explained the historical principles and the
    Almendarez-Torres exception, the Apprendi Court
    summarized the law as follows, in the now-famous Apprendi
    rule:
    
           “[O]ur reexamination of our cases in this area,
           and of the history upon which they rely,
    
                                   17
          confirms the opinion that we expressed in
          Jones. Other than the fact of a prior conviction,
          any fact that increases the penalty for a crime
          beyond the prescribed statutory maximum must
          be submitted to a jury, and proved beyond a
          reasonable doubt. With that exception, we
          endorse the statement of the rule set forth in the
          concurring opinions in that case: „[I]t is
          unconstitutional for a legislature to remove
          from the jury the assessment of facts that
          increase the prescribed range of penalties to
          which a criminal defendant is exposed. It is
          equally clear that such facts must be established
          by proof beyond a reasonable doubt.‟”
    
    Id. at 490 (quoting Jones, 526 U.S. at 252-53 (Stevens, J.,
    concurring); citing id. at 253 (Scalia, J., concurring)).
    Applying this newly articulated rule, the Apprendi court ruled
    that it was unconstitutional for the sentencing judge to
    increase Apprendi‟s sentence beyond the statutory maximum
    based on a judicial finding that the crime to which Apprendi
    pled guilty constituted a hate crime. In doing so, it compared
    Almendarez-Torres, reiterating that:       “there is a vast
    difference between accepting the validity of a prior judgment
    of conviction entered in a proceeding in which the defendant
    had the right to a jury trial and the right to require the
    prosecutor to prove guilt beyond a reasonable doubt, and
    allowing the judge to find the required fact under a lesser
    standard of proof.” Apprendi, 530 U.S. at 496.
    
    
    
    
                                 18
                                 IV.
    
           Based on these constitutional principles, Garrus
    requests habeas relief under AEDPA. Specifically, he claims
    that the trial court violated his Sixth Amendment and Due
    Process rights by finding that his prior 1997 conviction
    constituted a “crime of violence” and argues that the state
    appellate court decisions affirming that finding were
    “contrary to, or involved an unreasonable application of,
    clearly established Federal law, as determined by the
    Supreme Court of the United States” in Apprendi. See 28
    U.S.C. § 2254(d)(1).
    
           AEDPA “„imposes a highly deferential standard for
    evaluating state-court rulings‟ and „demands that state-court
    decisions be given the benefit of the doubt.‟” Felkner v.
    Jackson, 
    131 S. Ct. 1305
    , 1307 (2011) (quoting Renico v.
    Lett, 
    130 S. Ct. 1855
    , 1862 (2010)). We must use habeas
    corpus as a “„guard against extreme malfunctions in the state
    criminal justice systems,‟ not a substitute for ordinary error
    correction through appeal.” Harrington v. Richter, 
    131 S. Ct. 770
    , 786 (2011). Thus, we may grant habeas relief under
    AEDPA only if the state court‟s adjudication of a claim
    “resulted in a decision that was contrary to, or involved an
    unreasonable application of, clearly established Federal law,
    as determined by the Supreme Court of the United States[,]”
    or “resulted in a decision that was based on an unreasonable
    
    
    
    
                                 19
    determination of the facts in light of the evidence presented in
    the State court proceeding.”6 28 U.S.C. § 2254(d).
    
           Because the state court identified and relied on the
    correct governing legal rule established by Apprendi, we must
    apply AEDPA‟s “unreasonable application” standard.7 See
    Williams v. Taylor, 
    529 U.S. 362
    , 407-08 (2000). Under
    AEDPA‟s “unreasonable application” standard, we “may not
    issue the writ [if we merely] conclude[] . . . that the relevant
    state-court decision applied clearly established federal law
    erroneously or incorrectly.” Id. at 411. “Rather, that
    application must be „objectively unreasonable.‟” Renico, 130
    S. Ct. at 1862 (quoting Williams, 529 U.S. at 409). In other
    
           6
             Judge Hardiman computes the frequent rate at which
    the Supreme Court has reversed habeas decisions of the
    Courts of Appeals based on failure to afford appropriate
    deference to state court judgments. Dissenting Op. of
    Hardiman, J. at Part I. Such statistics cannot dispose of the
    instant case, especially in light of the Supreme Court‟s recent
    reminder that “[j]udges must be vigilant and independent in
    reviewing petitions for the writ[.]” Harrington, 131 S. Ct. at
    780 (emphasis added).
           7
             We consider the last state court adjudication on the
    merits, Greene, 132 S. Ct. at 44-45, which was the
    Pennsylvania Superior Court‟s PCRA decision, found at
    Commonwealth v. Garrus, No. 961 EDA 2005 (Pa. Super. Ct.
    Apr. 18, 2006).       See Greene, 132 S. Ct. at 43-45
    (Pennsylvania Supreme Court‟s denial of petition for appeal
    is not considered an adjudication on the merits).
    
    
                                  20
    words, we must consider whether the state court‟s
    “determination can[] be reconciled with any reasonable
    application of the controlling standard[.]”           Panetti v.
    Quarterman, 
    551 U.S. 930
    , 953 (2007) (emphasis added).
    Garrus must show that “the state court‟s ruling . . . was so
    lacking in justification that there was an error well understood
    and comprehended in existing law beyond any possibility for
    fairminded disagreement.” Harrington, 131 S. Ct. at 786-87.
    
           This case turns on the meaning of the “unreasonable
    application” standard. Garrus argues that the state court
    unreasonably applied Apprendi and its prior conviction
    exception by permitting the trial court to determine at
    sentencing that Garrus‟s prior 1997 conviction for
    burglarizing an unoccupied building (second-degree burglary)
    actually involved burglarizing an occupied building. In
    response, the Commonwealth argues that Garrus cannot meet
    his burden of proving that the state court‟s application of
    Apprendi was objectively unreasonable because neither
    Apprendi nor any case since has explicitly defined the scope
    of “the fact of a prior conviction” exception. However, our
    determination is not dependent on a fully delineated
    interpretation or application of “the fact of a prior conviction”
    exception, only a reasonable one. Panetti, 551 U.S. at 953
    (“That the standard is stated in general terms does not mean
    the application was reasonable.”). The AEDPA standard is
    not so “myopic” nor “constrained” that it requires the full
    scope of all clearly established laws to be precisely defined.
    Jamison v. Klem, 
    544 F.3d 266
    , 273 (3d Cir. 2008); see also
    id. (noting that if a Supreme Court decision must precisely
    resolve a given issue under AEDPA, only the “contrary to”
    
    
                                   21
    standard would exist, and the “unreasonable application”
    standard would be rendered meaningless). Rather, AEDPA
    requires that if a clearly established rule or principle is stated,
    however general, state courts must adhere to a reasonable
    application of that rule.8 Panetti, 551 U.S. at 953.
    
    
           8
              Our dissenting colleagues appear to agree that the
    focus of our inquiry should be on the “unreasonable
    application” prong of AEDPA.              Dissenting Op. of
    Greenaway, J. at Part I; Dissenting Op. of Hardiman, J. at
    Part I. Judge Greenaway also concedes that “Apprendi is at
    the forefront of our inquiry,” and that Apprendi limited and
    narrowed Almendarez-Torres. Dissenting Op. of Greenaway,
    J. at Part II. At the same time, Judges Greenaway and
    Hardiman fault us for not identifying a case “expounding on
    the contours of the amorphous prior-conviction exception.”
    Id. at ¶ 2; Dissenting Op. of Hardiman, J. at Part I.
    
            AEDPA, however, does not require clearly established
    federal law to be further elucidated by additional precedent
    before an application of that law may be unreasonable. See
    Panetti, 551 U.S. at 953 (“AEDPA does not „require state and
    federal courts to wait for some nearly identical factual pattern
    before a legal rule must be applied.‟” (quoting Carey v.
    Musladin, 
    549 U.S. 70
    , 81 (2006))). Instead, under AEDPA,
    “even a general standard may be applied in an unreasonable
    manner.” Id. (citing Williams, 
    529 U.S. 362
    ). Thus, our task
    is to review the Pennsylvania Superior Court‟s application of
    Apprendi, the clearly established federal law we do have, to
    Garrus‟s claim.
    
    
                                    22
            Apprendi clearly requires that any fact “other than the
    fact of a prior conviction” must be submitted to a jury if it
    will increase the penalty beyond the statutory maximum. 530
    U.S. at 490. Under AEDPA there is undoubtedly a broad
    spectrum of reasonable applications of this rule, but a fact that
    actually defies and contradicts a prior conviction falls
    squarely outside the spectrum of reasonable interpretations.
    Cf. Wilson v. Knowles, 
    638 F.3d 1213
    , 1215 (9th Cir. 2011)
    (“Courts may reasonably disagree about some of the precise
    boundaries of the exception. . . . But that does not mean that
    Apprendi is amorphous. . . . The judge‟s fact-finding seven
    years after the 1993 conviction extended beyond any
    reasonable interpretation of the prior conviction exception.”).
    We can find no reasonable basis for applying Apprendi to
    allow judicial finding of a fact that is inconsistent with and
    contradicts the facts established through constitutional
    procedures. The very reason for the exception is to recognize
    facts that have already “been established through procedures
    satisfying the fair notice, reasonable doubt, and jury trial
    guarantees.” Jones, 526 U.S. at 249. The phrase “fact of a
    
    
            By contrast, the rationale of our dissenting colleagues
    would render the Apprendi rule meaningless. It would, in
    effect, shift this case to the “contrary to” prong of AEDPA,
    preserving the “unreasonable application” prong of AEDPA
    in name only. Such an analysis is particularly inappropriate
    here because the Pennsylvania Superior Court correctly
    “identified controlling Supreme Court precedent.” Dissenting
    Op. of Greenaway, J. at Part I (citing Williams, 529 U.S. at
    406).
    
    
                                   23
    prior conviction” might be reasonably construed to allow
    judicial factfinding of a fact underlying a prior conviction or a
    fact consistent with a prior conviction. However, absent case
    law authorizing some type of paradoxical interpretation, “fact
    of a prior conviction” cannot reasonably be interpreted to
    allow judicial factfinding of a fact contradicting a prior
    conviction or a fact inconsistent with a prior conviction.9
    
    
    
    
           9
              Judge Greenaway faults our opinion for an alleged
    internal inconsistency:      we rely on Apprendi, a case
    concerned with the Sixth Amendment right to a jury trial, to
    require the sentencing judge to determine that Garrus‟s prior
    conviction was not a crime of violence. Dissenting Op. of
    Greenaway, J. at Part III. But Apprendi does not prohibit a
    judge from finding facts that do not increase a sentence
    beyond the statutory maximum. Rather, Apprendi only
    prohibits judicial factfinding that increases a sentence beyond
    the statutory maximum. 530 U.S. at 490.
    
    
                                   24
           No existing precedent so much as hints that a
    paradoxical interpretation of Apprendi might be reasonable.10
    Thus, under Apprendi, it was objectively unreasonable for the
    state court to allow Garrus to be sentenced beyond the
    statutory maximum based on a mere allegation that actually
    defied and contradicted his prior conviction.            The
    Commonwealth proffers several cases, which it argues could
    have supported the state court‟s decision to apply the prior
    conviction exception in Garrus‟s case, but its attempts fall
    flat.
    
           Despite the Commonwealth‟s attempts to paint it as
    such, Almendarez-Torres is not a panacea allowing
    recidivism-related judicial factfinding, or supporting the state
    court‟s determination that Apprendi‟s prior conviction
    exception permitted the sentencing judge to find that Garrus
    had burglarized an occupied building despite his plea to the
    contrary. Apprendi cited Almendarez-Torres as the “limited”
           10
              Judge Greenaway counters that “no Supreme Court
    precedent suggests that the majority‟s interpretation is the
    only reasonable interpretation.”      Dissenting Op. of
    Greenaway, J. at Part III. This argument implies that Judge
    Greenaway would defer to an objectively unreasonable state
    court judgment as long as there were more than one possible
    reasonable application of a Supreme Court precedent. While
    AEDPA mandates a highly deferential standard, it does not
    go as far as Judge Greenaway suggests. Instead, the test is
    whether the state court judgment “can[] be reconciled with
    any reasonable application of the controlling standard[.]”
    Panetti, 551 U.S. at 953.
    
    
                                  25
    and “narrow” exception to the Apprendi rule, 530 U.S. at 488
    n.14, 489-90, and explained that the constitutionality of that
    exception rested on (1) “the certainty that procedural
    safeguards attached to any „fact‟ of prior conviction,” and
    (2) “the reality that Almendarez-Torres did not challenge the
    accuracy of that „fact‟ in his case[.]” Id. at 488. In fact,
    Apprendi emphasized these factors at least twice, and it is
    important to note that neither factor is present in this case.
    Regarding the first factor, the only “fact” judicially found by
    the sentencing court in Almendarez-Torres was the actual fact
    that the defendant was convicted, and that “fact” had
    previously been established through a conviction process
    applying procedural safeguards. In contrast, Garrus was only
    accused of – not convicted of – the violent crime of
    burglarizing an occupied building (which would have been
    first-degree burglary). More importantly, Garrus only pled
    guilty and was convicted of burglarizing an unoccupied
    building (second-degree burglary).          Thus, unlike the
    Almendarez-Torres defendant, whose sentence was enhanced
    based on actual prior convictions, Garrus‟s sentence was
    enhanced beyond the statutory maximum without a basis in
    any jury determination or plea admission. Because the “fact”
    of which Garrus was accused was never found by a jury nor
    was it an element of the crime for which he pled guilty, no
    procedural safeguards attached to the finding of this “fact.”
    
           As to the second factor, Garrus makes clear in his
    reply brief that, unlike Almendarez-Torres, he did not
    concede or admit the fact at issue. In fact, at the sentencing
    hearing, he questioned the judicial finding that his 1997
    conviction was a “crime of violence.” (Sentencing Hr‟g Tr.
    
    
                                  26
    28, May 8, 2001, see App. at 177a.) A defendant waives his
    Apprendi rights only if he “either stipulates to the relevant
    facts or consents to judicial factfinding.”           Blakely v.
    Washington, 
    542 U.S. 296
    , 310 (2004) (citing Apprendi, 530
    U.S. at 488; Duncan v. Louisiana, 
    391 U.S. 145
    , 158 (1968)).
    Thus, neither of the two factors that allowed 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
    conviction entered in a proceeding in which the defendant had
    the right to a jury trial and the right to require the prosecutor
    to prove guilt beyond a reasonable doubt,” as occurred in
    Almendarez-Torres, and “allowing the judge to find the
    required fact under a lesser standard of proof[,]” as occurred
    in both Apprendi and here in Garrus‟s case. See 530 U.S. at
    496. Therefore, it was objectively unreasonable for the state
    court to find that Almendarez-Torres authorized the
    application of Apprendi‟s prior conviction exception in this
    case.
    
            Had Garrus been convicted of first-degree burglary in
    1997 (based on a jury finding or plea establishing that he
    burglarized a building that was occupied and adapted for
    overnight accommodation), we do not doubt that under
    Almendarez-Torres, the court sentencing him for his later
    manslaughter conviction could have taken note of the earlier
    first-degree burglary conviction and held that it qualified as a
    crime of violence under Pennsylvania‟s “three strikes” law.
    However, Garrus was convicted of second-degree burglary.
    
          Given the highly deferential AEDPA standard, it is
    even possible that if Pennsylvania merely had a generic
    
                                   27
    burglary statute that did not differentiate between burglarizing
    an occupied or unoccupied building, a reasonable application
    of the “fact of a prior conviction” exception might have
    permitted the judge to look at facts underlying the prior
    burglary conviction to determine whether Garrus was
    convicted of burglarizing an occupied building.11 See, e.g.,
    United States v. Santiago, 
    268 F.3d 151
    , 153, 157 (2d Cir.
    2001) (finding that Apprendi allows a sentencing judge to
    find “not only the mere fact of previous convictions but
    [certain] other related issues as well”);12 cf. Taylor v. United
    
    
    
    
           11
              We do not make any determination regarding this
    hypothetical issue; rather, we raise it to highlight the narrow
    scope of the issue before us today.
           12
              The Dissents urge us to follow Santiago. Dissenting
    Op. of Greenaway, J. at Part III; Dissenting Op. of Hardiman,
    J. at Part II. There, the issue was whether, under the federal
    recidivism statute, Apprendi required a jury to find beyond a
    reasonable doubt that the defendant‟s three predicate
    convictions were committed on separate occasions. Santiago,
    268 F.3d at 152-53. Then-Judge Sotomayor ruled that
    Apprendi did not prohibit sentencing judges from
    “determin[ing] the „who, what, when, and where‟ of a prior
    conviction.” Id. at 156. But the Second Circuit declined to
    extend this exception to the Apprendi rule “to all issues
    related to recidivism[.]” Id.
    
    
                                  28
    States, 
    495 U.S. 575
    , 602 (1990) (holding that under a federal
    “three strikes” law, the sentencing judge may only find facts
    that were necessary to the prior conviction). However, the
    sentencing judge in this case looked at the previous
    conviction for burglarizing an unoccupied building, and
    nonetheless found facts supporting exactly the opposite
    proposition: that the building had been occupied. Because
    Garrus was convicted of burglarizing an unoccupied building,
    the finding that the building was occupied was simply not a
    “fact of a prior conviction.” The finding that the building was
    occupied could be viewed as a fact of a prior accusation of
    first-degree burglary, or as a fact contradicting a prior
    
    
            Santiago is not controlling here. As an initial matter,
    Santiago is not “existing precedent” for AEDPA purposes.
    See Harrington, 131 S. Ct. at 785 (“Federal habeas relief may
    not be granted for claims subject to [28 U.S.C. § 2254(d)(1)]
    unless it is shown that the earlier state court‟s decision . . .
    involved an unreasonable application” of “federal law then
    clearly established in the holdings of the Supreme Court.”)
    (citations and internal quotations omitted). More importantly,
    permitting a sentencing judge to determine facts related to the
    “who, what, when, and where” of a prior conviction is
    altogether different from allowing judicial factfinding that
    completely contradicts a prior conviction.          Here, the
    sentencing court found as a “fact” related to Garrus‟s prior
    conviction an allegation that was contained in a police report
    and victim statement and that was irreconcilable with his plea
    agreement. The Second Circuit‟s reasoning in Santiago
    cannot be stretched to these facts.
    
    
                                  29
    conviction for second-degree burglary. Either way, it cannot
    be reasonably interpreted as a “fact of a prior conviction.”
    
           We likewise disagree with the Commonwealth‟s
    convoluted argument that Shepard somehow supports the
    state court‟s determination because it was decided on a
    statutory basis rather than a constitutional one. As a threshold
    matter, we note that Garrus contends that Shepard supports
    him rather than the Commonwealth. However, because
    Shepard‟s holding was limited to a federal statute that is
    inapplicable here and its constitutional discussion was mere
    dicta, Garrus cannot rely on it for relief. See Carey, 549 U.S.
    at 74 (“„[C]learly established Federal law‟ in § 2254(d)(1)
    „refers to the holdings, as opposed to the dicta, of th[e]
    [Supreme] Court‟s decisions as of the time of the relevant
    state-court decision.‟” (quoting Williams, 529 U.S. at 412)).13
    Nevertheless, we will address the Commonwealth‟s argument
    that Shepard somehow made the state court‟s application of
    Apprendi reasonable. Cf. Price v. Vincent, 
    538 U.S. 634
    , 643
    and n.2 (2003) (even cases that are not binding might be
    relevant to the consideration of whether a state court decision
    is objectively unreasonable).
    
           Shepard involved a sentencing enhancement pursuant
    to 18 U.S.C. § 924, which applies where a defendant has been
    
           13
               We need not reach the issue of whether Teague‟s
    retroactivity inquiry also precludes Garrus from relying on
    Shepard for relief. See Horn v. Banks, 
    536 U.S. 266
    , 272
    (2002) (noting that Teague‟s retroactivity inquiry remains
    relevant post-AEDPA).
    
    
                                  30
    previously convicted of violent felonies, including burglaries
    of buildings. 544 U.S. at 15-16. Shepard had previously
    been convicted of burglary four times, but he was convicted
    of burglarizing structures under Massachusetts law, and thus
    it was unclear from his convictions whether he had
    burglarized buildings or some other types of structures such
    as vehicles. Id. at 16-17; see also id. at 31 (O‟Connor, J.,
    dissenting). The Supreme Court held, based on principles of
    statutory interpretation, that the sentencing court was not
    permitted to look at police reports in order to determine
    whether the structures the defendant had burglarized were
    buildings. Id. at 16-22. It ruled that the sentencing court was
    “limited to the terms of the charging document, the terms of a
    plea agreement or [the terms of the] transcript of [the plea]
    colloquy . . . or to some comparable judicial record of this
    information.” Id. at 26.
    
           The Commonwealth suggests that the state court could
    have gleaned support from Shepard by finding that because
    Shepard‟s holding was not constitutionally based, the use of
    police reports for judicial factfinding was constitutionally
    permissible. However such non sequitur reasoning is
    objectively unreasonable. The Shepard Court did nothing
    more than employ the classic doctrine of constitutional
    avoidance by deciding the case on a statutory basis. It is
    entirely unreasonable to read constitutional avoidance as
    indicative that a practice is constitutionally permissible. In
    fact, if anything can be read into the Shepard Court‟s
    discussion of the Constitution in dicta, it is that the majority
    of the Court expressed grave constitutional concerns: four
    justices cited concerns that looking at police reports
    
    
                                  31
    underlying a prior conviction posed “serious risks of
    unconstitutionality” under Apprendi, and Justice Thomas
    would have gone further and found the entire “fact of a prior
    conviction” exception to be unconstitutional. See id. at 25
    (plurality); id. at 26-28 (Thomas, J., concurring in part and
    concurring in the judgment).
    
           Even assuming for purposes of this analysis that the
    Supreme Court expressed constitutional uncertainty about
    Apprendi‟s application in Shepard, it does not follow that
    Apprendi‟s application here is unclear. In fact, nothing in
    Shepard supports the Commonwealth‟s argument that “the
    fact of a prior conviction” might be reasonably construed to
    mean a fact contradicting a prior conviction because Shepard
    simply did not involve a fact contradicting a prior conviction.
    Crucially, Shepard had four times been convicted of
    burglarizing structures, and the police reports did not
    contradict this fact. Rather, the police reports supported the
    conviction for burglary of structures, and merely explained
    specifically that the types of structures involved were
    buildings. As the plurality noted, the factual allegations in
    the Shepard police reports might have been permitted by
    Apprendi as “a fact about a prior conviction[.]” Shepard, 544
    U.S. at 25 (plurality) (emphasis added). The Shepard
    dissent‟s argument also highlights this distinction by stating
    that sentencing judges should be able to refer to “internally
    consistent parts of the record from the earlier conviction.” Id.
    at 31 (O‟Connor, J., dissenting). In contrast, the police report
    alleging that Garrus burglarized an occupied building cannot
    reasonably be interpreted as a fact consistent with or a fact
    
    
    
                                  32
    about Garrus‟s conviction for burglarizing an unoccupied
    building.
    
           Rather than supporting the Commonwealth‟s
    argument, Shepard demonstrates that even judicial factfinding
    that is consistent with a prior conviction might be
    unconstitutional. By no means does it support the proposition
    that Apprendi‟s “fact of a prior conviction” exception might
    be reasonably interpreted to allow judicial factfinding that
    contradicts a prior conviction.
    
           Finally, the Commonwealth strains to argue that some
    Circuit court cases show that the state court‟s application of
    Apprendi was reasonable. See Kessee v. Mendoza-Powers,
    
    574 F.3d 675
     (9th Cir. 2009); United States v. Smith, 
    474 F.3d 888
    , 892 (6th Cir. 2007), abrogation on other grounds
    recognized by United States v. Johnson, 
    640 F.3d 195
    , 205
    (6th Cir. 2011); Boyd v. Newland, 
    467 F.3d 1139
     (9th Cir.
    2006); United States v. Hollingsworth, 
    414 F.3d 621
     (6th Cir.
    2005); United States v. Williams, 
    410 F.3d 397
     (7th Cir.
    2005); United States v. Camacho-Ibarquen, 
    410 F.3d 1307
    (11th Cir. 2005); United States v. Kempis-Bonola, 
    287 F.3d 699
     (8th Cir. 2002); Santiago, 268 F.3d at 151. We disagree;
    none of these cases demonstrates that it was reasonable for
    the state court to apply Apprendi to sentence a defendant
    beyond the statutory maximum based on a fact contradicting a
    
    
    
    
                                 33
    prior conviction.14 In short, none of these cases involves a
    judicial finding of fact that contradicted the defendant‟s prior
    
           14
              Contrary to Judge Hardiman‟s argument, there is no
    circuit split on this issue, and our decision here does not
    create one. Dissenting Op. of Hardiman, J. at Part II. Neither
    Portalatin v. Graham, 
    624 F.3d 69
     (2d Cir. 2010), nor United
    States v. Davis, 
    260 F.3d 965
     (8th Cir. 2001), addresses the
    question in this case. For this reason, we express no view on
    whether these cases were decided correctly, nor do we
    question the fairmindedness of those jurists.
    
           In Portalatin, the petitioners were sentenced under
    New York‟s recidivism statute. 624 F.3d at 72. Pursuant to
    that law, a defendant is subject to an increased sentencing
    range as a repeat offender “based solely on whether [he] [has]
    two prior convictions.” Id. at 88 (quoting People v. Rivera,
    
    833 N.E.2d 194
    , 198 (N.Y. 2005) (original emphasis)). After
    a sentencing court determines that a defendant is a repeat
    offender and that an increased sentencing range applies, it
    considers “the history and character of the defendant, and the
    nature and circumstances of his crime,” before selecting a
    sentence within the increased range. Id. at 90. In Portalatin,
    the Second Circuit first agreed with the New York Court of
    Appeals that if the recidivism statute were construed “to
    require the court to find additional facts about the defendant
    before imposing a recidivism sentence, the statute[] would
    violate Apprendi.” Id. at 89 (quoting Rivera, 833 N.E.2d at
    198) (emphasis added). But the Portalatin court also
    concluded that a sentencing court could consider subsidiary
    facts about a defendant‟s prior convictions before imposing a
    
                                  34
    repeat offender sentence without violating Apprendi. Id. at
    92. Nonetheless, the important point here is that the Second
    Circuit did not discuss whether the sentencing court could
    find or consider underlying facts that contradict an offender‟s
    prior conviction. The failure to address this subject is
    unsurprising as the Portalatin petitioners did not dispute their
    underlying convictions. Id. at 75-78.
    
            Similarly, in Davis, the appellant, sentenced as a repeat
    offender under federal law, argued that due process required a
    jury to conclude beyond a reasonable doubt that his prior
    convictions were qualifying felonies under the recidivism
    statute. 260 F.3d at 967-69. The Eighth Circuit held only
    that, under Apprendi and Almendarez-Torres, the “fact of
    prior conviction includes . . . a determination of whether a
    conviction is one of the enumerated types qualifying for the
    sentence enhancement under [18 U.S.C. § 3559].” Id. at 969
    (citation omitted). Conspicuously absent from the Davis
    decision is any indication that the Eighth Circuit would have
    held it reasonable for the state court, in making its
    determination, to find facts precluded by the prior conviction.
    
    
                                   35
    conviction.15 In fact, at least one of the cases did not even
    involve judicial factfinding that increased the penalty beyond
    
    
    
    
           15
              Only Garrus cites to a case that is close to being on
    point: Wilson, 
    638 F.3d 1213
    . Wilson was convicted by a
    jury of driving under the influence with a prior felony
    conviction. Id. at 1214. At sentencing, the judge found that
    Wilson‟s conviction was his third strike under California‟s
    “three strikes” law, and enhanced his sentence accordingly.
    In order to find that one of the previous convictions counted
    as a strike under California‟s “three strikes” law, the
    sentencing judge had to make several findings of fact that
    were not necessary for the conviction. Id. at 1215. The issue
    for the Ninth Circuit was whether such judicial findings “fell
    within the prior conviction exception.” Id. The Ninth Circuit
    started by noting that “[c]ourts may reasonably disagree about
    some of the precise boundaries of the exception . . . [b]ut that
    does not mean that Apprendi is amorphous.” Id. It went on
    to find that the judicially found facts – such as the extent of
    the victim‟s injuries – were disputed and not found by a jury
    or in any way necessary to the conviction. Id. “The judge . . .
    speculated as to how a [previous] jury . . . might have
    evaluated the evidence if the evidence had been offered and if
    a jury had been impaneled to evaluate it.” Id. Thus, the
    judge‟s factfinding “extended beyond any reasonable
    interpretation of the prior conviction exception.” Id.
    
    
                                  36
    the prescribed statutory maximum. See Smith, 474 F.3d at
    892.
    
           Upon a thorough and circumspect examination of the
    potential arguments or theories that “supported or . . . could
    have supported, the state court‟s decision[,]” we believe that
    no “fair-minded jurist could disagree that those arguments or
    
    
    
    
           Just as in Wilson, Garrus‟s sentencing judge made
    judicial findings of fact that were not necessary to his prior
    conviction, and then speculated as to how a jury might have
    evaluated the evidence had it been offered, or whether Garrus
    might have admitted to the evidence at his plea hearing. The
    Commonwealth tries to distinguish Wilson on the basis that
    the facts here in Garrus‟s case are “less controversial” than
    the judicially found facts in Wilson, but we find such a
    distinction unavailing; regardless of how controversial the
    facts were in Wilson, the determinative issue was that such
    facts were not necessary to the verdict, and were never
    determined by a jury nor pled to by the defendant. Id. at
    1215-16. If anything, Garrus‟s case is stronger than Wilson‟s
    because in Garrus‟s case the facts actually contradicted his
    prior conviction, whereas in Wilson‟s case, the facts were
    simply not necessary to the prior conviction.
    
    
                                 37
    theories are inconsistent with the holding in” Apprendi.16
    Harrington, 131 S. Ct. at 786; see also Panetti, 551 U.S. at
    953 (The “record . . . cannot, under any reasonable
    interpretation of the controlling legal standard, support [the
    state‟s] legal ruling.”). In fact, no fairminded jurist could
    disagree that the state court‟s paradoxical interpretation of the
    prior conviction exception renders an absurd result under
    Apprendi, allowing a judge that applies the “three strikes”
    statute to make the very factual finding that an earlier judge
    would have been prohibited from making. As we noted
    above, Apprendi pled guilty to unlawful possession of a
    weapon, a second-degree offense punishable by a maximum
    of ten years‟ imprisonment, but the judge increased the
    sentence beyond the statutory maximum based on the finding
    of an additional factor, effectively imposing punishment on
    the defendant for a first-degree offense. Apprendi, 
    530 U.S. 16
               Judge Greenaway accuses us of wasting “pages
    examining Supreme Court precedent” without “grappl[ing]
    with precedent that undermines” our position. Dissenting Op.
    of Greenaway, J. at Part II. We agree that it would have been
    simpler for us to prove the reasonableness of our own
    interpretation of Apprendi. But we recognize that under
    AEDPA, we “must determine what arguments or theories
    supported or . . . could have supported the state court‟s
    decision; and then [we] must ask whether it is possible
    fairminded jurists could disagree that those arguments or
    theories are inconsistent with the holding in a prior decision
    of [the Supreme] Court.” Harrington, 131 S. Ct. at 786. Our
    analysis comports with this standard.
    
    
                                   38
    at 491. Thus, under Apprendi, it is clear that a judge applying
    the initial sentence for second-degree burglary (under
    Pennsylvania law) cannot enhance the sentence beyond the
    statutory maximum based on the finding that the defendant
    burglarized an occupied building, effectively imposing
    punishment on the defendant for a first-degree offense. The
    Commonwealth today would have us believe that Apprendi
    may be reasonably applied to allow a later judge sentencing a
    defendant to look back at the defendant‟s initial conviction
    and make the factual finding that the initial sentencing judge
    was prohibited from making. Apprendi cannot be reasonably
    construed or applied to allow this absurd result.
    
           Accordingly, we conclude that it was objectively
    unreasonable for the state court to apply Apprendi‟s prior
    conviction exception to allow judicial factfinding based on an
    allegation that actually defied and contradicted the elements
    of the prior conviction. The rule of Apprendi and the prior
    conviction exception simply cannot be reconciled with the
    state court decision. In sum, Garrus has shown that “the state
    court‟s ruling . . . was so lacking in justification that there was
    an error well understood and comprehended in existing law
    beyond any possibility for fairminded disagreement.”
    Harrington, 131 S. Ct. at 786-87.
    
           We recognize the rarity of today‟s determination;
    seldom does a state court‟s decision fail to withstand
    AEDPA‟s highly deferential standard.         However, our
    conclusion that the state court unreasonably applied clearly
    established law by relying on a narrow and inapplicable
    exception is not unprecedented.        See Abdul-Kabir v.
    Quarterman, 
    550 U.S. 233
    , 258 (2007) (finding that the state
    
                                    39
    court unreasonably applied clearly established law by relying
    on an inapplicable “narrow holding” and “ignoring the
    fundamental principles established by [the Supreme Court‟s]
    most relevant precedents”); Williams, 529 U.S. at 397
    (finding that the state court unreasonably applied clearly
    established law by relying on an “inapplicable” exception to
    the law clearly established by Strickland). AEDPA severely
    constrained our ability to review state court decisions, but it
    did not render our review void or meaningless. See, e.g.,
    Harrington, 131 S. Ct. at 786 (Ҥ 2254(d) stops short of
    imposing a complete bar on federal court relitigation of
    claims already rejected in state proceedings.”); Jamison, 544
    F.3d at 273 (the “unreasonable application” standard is not
    meaningless). We must use our habeas authority only to
    “guard against extreme malfunctions in the state criminal
    justice systems,” Harrington, 131 S. Ct. at 786, and today, we
    exercise our authority to do so.
    
                                  V.
    
           We conclude that the District Court erred in
    determining that § 2254(d)(1) prevented it from granting
    Garrus habeas relief. The state court unreasonably applied
    Apprendi by allowing Garrus to be sentenced beyond the
    statutory maximum based on a judicial finding that he
    burglarized an occupied building when he was actually
    convicted of burglarizing an unoccupied building.
    
          Having determined that AEDPA does not bar federal
    habeas relief, we must also consider whether the state court
    determination had a “substantial and injurious effect” on
    Garrus‟s sentence. Fry v. Pliler, 
    551 U.S. 112
    , 116-20
    
                                  40
    (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 conclude that the District Court
    erred in failing to grant habeas relief under these
    circumstances. We will reverse the order of the District
    Court, and remand with directions that a writ of habeas
    corpus be conditionally granted, providing that petitioner be
    resentenced or released from custody within 120 days, unless,
    within that time, the Commonwealth of Pennsylvania
    determines that petitioner qualifies for the sentencing
    enhancement based on his two 1995 robbery convictions.
    
    
    
    
                                 41
    Garrus v. Sec’y PA Dept. of Corrections
    No. 09-3586
    
    HARDIMAN, Circuit Judge, dissenting, joined by
    CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit
    Judges.
    
           Judge Greenaway has succinctly explained how the
    Court has gone astray in this case, and I join his dissent in its
    entirety. I write separately because I think the reason why the
    majority has erred illuminates how it has done so.
    
                                    I
    
           Since its enactment in 1996, no law has so vexed the
    United States Courts of Appeals as the Antiterrorism and
    Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. In
    twelve years, the Supreme Court has granted certiorari in
    ninety-four cases arising under AEDPA, forty-six of which
    involved questions of federal court deference to decisions of
    state courts. 1 Thirty-four of those cases (approximately
           1
             See Parker v. Matthews, 
    132 S. Ct. 2148
     (2012);
    Coleman v. Johnson, 
    132 S. Ct. 2060
     (2012); Lafler v.
    Cooper, 
    132 S. Ct. 1376
     (2012); Howes v. Fields, 
    132 S. Ct. 1181
     (2012); Hardy v. Cross, 
    132 S. Ct. 490
     (2011); Bobby v.
    Dixon, 
    132 S. Ct. 26
     (2011); Cavazos v. Smith, 
    132 S. Ct. 2
    (2011); Bobby v. Mitts, 
    131 S. Ct. 1762
     (2011); Cullen v.
    Pinholster, 
    131 S. Ct. 1388
     (2011); Felkner v. Jackson, 
    131 S. Ct. 1305
     (2011); Harrington v. Richter, 
    131 S. Ct. 770
    (2011); Premo v. Moore, 
    131 S. Ct. 733
     (2011); Berghuis v.
    Thompkins, 
    130 S. Ct. 2250
     (2010); Renico v. Lett, 
    130 S. Ct. 1855
     (2010); Berghuis v. Smith, 
    130 S. Ct. 1382
     (2010);
    Wood v. Allen, 
    130 S. Ct. 841
     (2010); Smith v. Spisak, 130
    
    
    
    
                                   1
    seventy-four percent) have been reversed because the court of
    appeals failed to afford sufficient deference to the state court. 
    2 S. Ct. 676
     (2010); McDaniel v. Brown, 
    130 S. Ct. 665
     (2010);
    Porter v. McCollum, 
    130 S. Ct. 447
     (2009); Knowles v.
    Mirzayance, 
    556 U.S. 111
     (2009); Waddington v. Sarausad,
    
    555 U.S. 179
     (2009); Wright v. Van Patten, 
    552 U.S. 120
    (2008); Panetti v. Quarterman, 
    551 U.S. 930
     (2007); Fry v.
    Pliler, 
    551 U.S. 112
     (2007); Uttecht v. Brown, 
    551 U.S. 1
    (2007); Schriro v. Landrigan, 
    550 U.S. 465
     (2007); Brewer v.
    Quarterman, 
    550 U.S. 286
     (2007); Abdul-Kabir v.
    Quarterman, 
    550 U.S. 233
     (2007); Carey v. Musladin, 
    549 U.S. 70
     (2006); Rice v. Collins, 
    546 U.S. 333
     (2006); Kane v.
    Garcia Espitia, 
    546 U.S. 9
     (2005); Rompilla v. Beard, 
    545 U.S. 374
     (2005); Miller-El v. Dretke, 
    545 U.S. 231
     (2005);
    Brown v. Payton, 
    544 U.S. 13
    3 (2005); Holland v. Jackson,
    
    542 U.S. 649
     (2004); Yarborough v. Alvarado, 
    541 U.S. 652
    (2004); Middleton v. McNeil, 
    541 U.S. 433
     (2004); Mitchell
    v. Esparza, 
    540 U.S. 12
     (2003); Yarborough v. Gentry, 
    540 U.S. 1
     (2003); Wiggins v. Smith, 
    539 U.S. 510
     (2003);
    Lockyer v. Andrade, 
    538 U.S. 63
     (2003); Woodford v.
    Visciotti, 
    537 U.S. 19
     (2002); Early v. Packer, 
    537 U.S. 3
    (2002); Bell v. Cone, 
    535 U.S. 685
     (2002); Ramdass v.
    Angelone, 
    530 U.S. 156
     (2000); Williams v. Taylor, 
    529 U.S. 362
     (2000).
           2
             See Parker, 
    132 S. Ct. 2148
    ; Coleman, 
    132 S. Ct. 2060
    ; Howes, 
    132 S. Ct. 1181
    ; Hardy, 
    132 S. Ct. 490
    ; Dixon,
    
    132 S. Ct. 26
    ; Cavazos, 
    132 S. Ct. 2
    ; Mitts, 
    131 S. Ct. 1762
    ;
    Pinholster, 
    131 S. Ct. 1388
    ; Felkner, 
    131 S. Ct. 1305
    ;
    Harrington, 
    131 S. Ct. 770
    ; Premo, 
    131 S. Ct. 733
    ;
    Thompkins, 
    130 S. Ct. 2250
    ; Renico, 
    130 S. Ct. 1855
    ; Smith,
    
    130 S. Ct. 1382
    ; Spisak, 
    130 S. Ct. 676
    ; McDaniel, 
    130 S. Ct. 2
    Remarkably, twenty-two of those cases—almost fifty
    percent—were reversed without dissent. 3
    
    
    
    665; Knowles, 
    556 U.S. 111
    ; Waddington, 
    555 U.S. 179
    ;
    Wright, 
    552 U.S. 120
    ; Uttecht, 
    551 U.S. 1
    ; Schriro, 
    550 U.S. 465
    ; Carey, 
    549 U.S. 70
    ; Rice, 
    546 U.S. 333
    ; Kane, 
    546 U.S. 9
    ; Payton, 
    544 U.S. 13
    3; Holland, 
    542 U.S. 649
    ; Yarborough,
    
    541 U.S. 652
    ; Middleton, 
    541 U.S. 433
    ; Mitchell, 
    540 U.S. 12
    ; Gentry, 
    540 U.S. 1
    ; Lockyer, 
    538 U.S. 63
    ; Woodford, 
    537 U.S. 19
    ; Early, 
    537 U.S. 3
    ; Bell, 
    535 U.S. 685
    .
           3
             See Parker, 132 S. Ct. at 2155 (holding that the Sixth
    Circuit erred by following its own precedent rather than that
    of the Supreme Court in determining what is “clearly
    established Federal law”); Coleman, 132 S. Ct. at 2062
    (holding that the Third Circuit “failed to afford due respect to
    the role of the jury and the state courts of Pennsylvania”);
    Hardy, 132 S. Ct. at 495 (reversing the Second Circuit and
    stating, “[T]he deferential standard of review set out in 28
    U.S.C. § 2254(d) does not permit a federal court to overturn a
    state court’s decision on the question of unavailability merely
    because the federal court identifies additional steps that might
    have been taken. Under AEDPA, if the state-court decision
    was reasonable, it cannot be disturbed.”); Dixon, 132 S. Ct. at
    27 (“Because it is not clear that the Ohio Supreme Court erred
    at all, much less erred so transparently that no fairminded
    jurist could agree with that court’s decision, the Sixth
    Circuit’s judgment must be reversed.”); Mitts, 131 S. Ct. at
    1765 (holding that the Sixth Circuit erred in finding that the
    state court’s jury instructions were contrary to clearly
    established federal law); Felkner, 131 S. Ct. at 1307 (“The
    state appellate court’s decision was plainly not unreasonable.
    
    
    
    
                                   3
    There was simply no basis for the Ninth Circuit to reach the
    opposite conclusion, particularly in such a dismissive
    manner.”); Harrington, 131 S. Ct. at 778 (“[The Ninth
    Circuit’s] opinion shows an improper understanding of
    § 2254(d)’s unreasonableness standard and operation in the
    context of a Strickland claim.”); Premo, 131 S. Ct. at 746
    (holding that the Ninth Circuit erred in granting habeas relief
    because the state court’s decision was not an unreasonable
    application of Strickland v. Washington, 
    466 U.S. 668
    (1984)); Berghuis, 130 S. Ct. at 1392 (finding that the Sixth
    Circuit erred in granting habeas relief because the state
    court’s decision was consistent with Duren v. Missouri, 
    439 U.S. 357
     (1979)); Spisak, 130 S. Ct. at 684 (holding that the
    Sixth Circuit erred in granting habeas relief because the state
    court’s upholding of jury instructions and verdict forms
    regarding the weighing of aggravating and mitigating factors
    was not “contrary to, or . . . an unreasonable application of,
    clearly established Federal law” (citation and internal
    quotation marks omitted)); McDaniel, 130 S. Ct. at 672
    (holding that the Ninth Circuit erred in granting habeas relief
    because the state court’s rejection of the defendant’s
    insufficiency-of-the-evidence claim was not unreasonable
    under AEDPA); Knowles, 556 U.S. at 114 (finding that the
    Ninth Circuit erred because the state court’s decision that the
    defendant was not deprived of effective counsel was not
    “contrary to, or . . . an unreasonable application of, clearly
    established Federal law” (citation and internal quotation
    marks omitted)); Wright, 552 U.S. at 126 (reversing the
    Seventh Circuit and stating, “because our cases give no clear
    answer to the question presented, let alone one in [the
    defendant]’s favor, it cannot be said that the state court
    unreasonably applied clearly established Federal law.”
    
    
    
    
                                  4
    (citation and internal quotation marks omitted)); Carey, 549
    U.S. at 72 (holding that the Ninth Circuit improperly granted
    habeas relief because the state court’s decision that it was not
    inherently prejudicial when court spectators wore buttons
    depicting the murder victim was not contrary to or an
    unreasonable application of clearly established federal law);
    Rice, 546 U.S. at 334 (finding that the Ninth Circuit
    improperly granted habeas relief because it was not
    unreasonable for the state trial court to “credit the
    prosecutor’s race-neutral explanations for the [defendant’s]
    Batson challenge”); Kane, 546 U.S. at 10 (holding that the
    Ninth Circuit improperly granted habeas relief because there
    exists no clearly established right under federal law to access
    a law library while in jail); Holland, 542 U.S. at 652
    (concluding that the Sixth Circuit erred because the state
    court’s application of Strickland was not unreasonable under
    AEDPA); Middleton, 541 U.S. at 437–38 (holding that the
    Ninth Circuit erred because the state appellate court’s
    conclusion that one incorrect statement in jury instructions
    did not render the instructions likely to mislead the jury was
    not unreasonable); Mitchell, 540 U.S. at 13 (finding that the
    Sixth Circuit’s decision “ignore[d] the limits imposed on
    federal habeas review by 28 U.S.C. § 2254(d)”); Gentry, 540
    U.S. at 11 (noting that the Ninth Circuit gave “too little
    deference to the state courts that have primary responsibility
    for supervising defense counsel in state criminal trials”);
    Woodford, 537 U.S. at 20 (holding that the Ninth Circuit’s
    decision “exceed[ed] the limits imposed on federal habeas
    review by 28 U.S.C. § 2254(d)”); Early, 537 U.S. at 4
    (finding that the state appellate court’s determination that the
    trial court’s comments did not coerce the jury was not
    contrary to clearly established federal law).
    
    
    
    
                                   5
           The Supreme Court decisions catalogued in the margin
    echo a common mistake: the failure to adhere to AEDPA’s
    extraordinarily deferential standard of review. Our Court
    makes that same mistake today.
    
           The majority’s fundamental error is manifest in the
    question we presented to the parties: “whether the district
    court erred in considering the defendant’s 1997 conviction for
    second-degree burglary in determining whether the defendant
    should be sentenced under Pennsylvania’s ‘three strikes’ law,
    42 Pa. Cons. Stat. § 9714.” This was the wrong question to
    ask in an AEDPA case that originated in state court. As the
    Commonwealth of Pennsylvania correctly argued, “[u]nder
    the federal habeas statute, ‘the only question that matters [is]
    whether [the] state court decision is contrary to, or involved
    an unreasonable application of, clearly established federal
    law.’” Appellee’s Supp. Br. 1 (emphasis added) (quoting
    Lockyer v. Andrade, 
    538 U.S. 63
    , 71 (2003)). Indeed, “a state
    prisoner must show that the state court’s ruling on the claim
    being presented in federal court was so lacking in justification
    that there was an error well understood and comprehended in
    existing law beyond any possibility for fairminded
    disagreement.” Harrington v. Richter, 
    131 S. Ct. 770
    , 786–
    87 (2011). Even petitioner Garrus acknowledged—albeit in
    somewhat apologetic fashion—that the question we presented
    invited argument under the wrong legal standard:
    
           The question presented is somewhat ambiguous
           because the district court did not “consider” the
           1997 burglary conviction for purposes of
           “determining whether the defendant should be
           sentenced under Pennsylvania’s ‘three strikes’
           law.” Instead, applying 28 U.S.C. § 2254(d)(1),
           the district court analyzed whether the
    
    
    
    
                                   6
           Pennsylvania Superior Court unreasonably
           applied clearly established U.S. Supreme Court
           precedent when it upheld the state sentencing
           court’s decision to rely on police reports and
           witness statements to make findings of fact
           about the 1997 burglary conviction, only to rely
           on those findings to impose an enhanced
           sentence under the Three Strikes Law.
    
    Appellant’s Br. 1 n.1.
    
           Instead of posing a question that circumvented
    AEDPA’s deferential standard of review, we should have
    asked whether any Supreme Court decision directly prohibits
    a state court judge from looking to the facts underlying a
    defendant’s prior conviction when considering a recidivism
    enhancement. The answer to that question is “no.”
    
                                  II
    
           Central to the state court’s decision was the issue of
    who—judge or jury—should find facts regarding prior
    convictions when assessing a defendant’s history of
    recidivism. Because recidivism “‘does not relate to the
    commission of the offense, but goes to the punishment only,
    [it] therefore . . . may be subsequently decided’” by the
    sentencing judge. Almendarez-Torres v. United States, 
    523 U.S. 224
    , 244 (1998) (quoting Graham v. West Virginia, 
    224 U.S. 616
    , 629 (1912)). Garrus did not even attempt to explain
    why his case does not fall squarely within the recidivism
    exception announced in Almendarez-Torres. Instead, he
    relied entirely on Apprendi v. New Jersey, 
    530 U.S. 466
    (2000). But as then-Judge Sotomayor wrote for the Court of
    Appeals for the Second Circuit, in a case not subject to
    
    
    
    
                                  7
    AEDPA’s deferential standard of review, “recidivism has
    long been considered a distinct issue,” and “[n]othing in
    Apprendi itself—as it involved a hate crime statute enhancing
    sentences based on the motivation underlying the crime—
    calls that distinction into question.” United States v.
    Santiago, 
    268 F.3d 151
    , 156 (2d Cir. 2001).             Judge
    Sotomayor then clearly explained why Apprendi is of no help
    to habeas petitioners such as Garrus:
    
          Almendarez-Torres explains why recidivism
          requires special treatment, and absent an
          explicit Supreme Court ruling to the contrary,
          we decline to institute a policy that runs counter
          to the principles set forth in that opinion. In
          short, we read Apprendi as leaving to the judge
          . . . the task of finding not only the mere fact of
          previous convictions but other related issues as
          well. Judges frequently must make factual
          determinations for sentencing, so it is hardly
          anomalous to require that they also determine
          the “who, what, when, and where” of a prior
          conviction.
    
    Id.
    
            If this were not a case governed by AEDPA and the
    question presented was whether what befell Garrus violated
    the rule of Apprendi, the majority’s decision might well be
    correct. It is no secret that Almendarez-Torres is one of the
    most tenuous precedents of the Supreme Court; three of the
    five sitting justices who participated in Apprendi have openly
    
    
    
    
                                  8
    criticized Almendarez-Torres. 4 Nevertheless, I am convinced
    that even critics of Almendarez-Torres would be hard-pressed
    to hold that the state court in this case violated the rule of
    Apprendi when it found facts pursuant to a state recidivist
    statute.
    
           The existence of a circuit split demonstrates that it is
    wrong to conclude that “‘fairminded jurists could [not]
    disagree’ on the correctness of the state court’s decision” in
    this case. Harrington v. Richter, 
    131 S. Ct. 770
    , 786 (2011)
    (quoting Yarborough v. Alvarado, 
    541 U.S. 652
    , 664 (2004)).
    The Courts of Appeals for the Second and Eighth Circuits
    have found no constitutional violation in circumstances
    similar to those presented in this appeal. See Portalatin v.
    Graham, 
    624 F.3d 69
     (2d Cir. 2010) (en banc); United States
    v. Davis, 
    260 F.3d 965
     (8th Cir. 2001).
    
          In Portalatin, the Second Circuit consolidated the
    habeas petitions of three prisoners who had been sentenced
    under New York’s persistent felony offender (PFO) statute.
    The petitioners argued that the statute was unconstitutional
    because it required a sentencing judge to assess the nature,
           4
              See Apprendi, 530 U.S. at 489–90 (Scalia, Thomas,
    Ginsburg, JJ., joining the majority) (“[I]t is arguable that
    Almendarez-Torres was incorrectly decided, and that a logical
    application of our reasoning today should apply if the
    recidivist issue were contested.”); id. at 520–21 (Thomas, J.,
    concurring) (“[O]ne of the chief errors of Almendarez-
    Torres—an error to which I succumbed—was to attempt to
    discern whether a particular fact is traditionally (or typically)
    a basis for a sentencing court to increase an offender’s
    sentence. . . . [T]his approach just defines away the real
    issue.”).
    
    
    
    
                                   9
    rather than the mere fact of, predicate felony convictions
    before imposing a PFO sentence. They urged the court to
    construe the Almendarez-Torres exception to Apprendi
    narrowly so as to prevent a sentencing judge from considering
    the facts underlying a defendant’s prior conviction when
    forming an opinion about his criminal history. Finding “no
    clear holding of the Supreme Court to command such a
    result,” the Second Circuit explained that, “‘[g]iven the lack
    of holdings from th[e] [Supreme Court]’ construing the
    recidivism exception as narrowly as petitioners urge, ‘it
    cannot be said that the state court unreasonably applied
    clearly established federal law.’” Id. at 92 (quoting Carey v.
    Musladin, 
    549 U.S. 70
    , 77 (2006)). Commenting on the “lack
    of guidance as to the precise scope of the recidivism
    exception,” the court concluded:
    
          It might well be constitutionally significant
          whether a sentencing judge is required to find,
          for example, that a defendant’s criminal history
          is “especially violent” before imposing a
          sentence, or whether, as in New York, a
          sentencing judge simply must find that the
          nature of his criminal history justifies “extended
          incarceration and life-time supervision.” . . .
          The Supreme Court may answer that question at
          some future time. But, if our Court cannot
          divine a clear answer from the Court’s existing
          holdings, AEDPA prevents us from faulting a
          state court for selecting one reasonable
          conclusion over another.
    
    
    
    
                                 10
    Id. at 93; see also United States v. Snype, 
    441 F.3d 119
    , 148
    (2d Cir. 2006) (noting that while the continued viability of
    Almendarez-Torres has been questioned, the Supreme Court
    has not reversed that decision).
    
            The Eighth Circuit reached a similar result in Davis.
    There, the appellant had been sentenced to a term of life
    imprisonment as a repeat offender following a federal
    conviction for attempted armed bank robbery, an offense that
    carried a statutory maximum of twenty-five years. He argued
    that the question of whether his past robbery convictions were
    qualifying felonies for purposes of the recidivist statute
    should have been decided by the jury, not by the sentencing
    judge. The court disagreed, finding that the “fact of prior
    conviction includes not only the fact that a prior conviction
    exists, but also a determination of whether a conviction is one
    of the enumerated types qualifying for the sentence
    enhancement.” Davis, 260 F.3d at 969. Conceding that
    Apprendi casts doubt on the viability of Almendarez-Torres,
    the Eighth Circuit nonetheless concluded that its role was “to
    apply Supreme Court precedent as it stands, and not as it may
    develop.” Id.
    
           Adverse to the Second Circuit’s decision in Portalatin
    and the Eighth Circuit’s decision in Davis stands the opinion
    of the Ninth Circuit in Wilson v. Knowles, 
    638 F.3d 1213
     (9th
    Cir. 2011). After a 1993 car accident, Wilson pleaded no
    contest to gross vehicular manslaughter while driving under
    the influence of alcohol and to proximately causing bodily
    injury while driving under the influence of alcohol. When
    sentencing Wilson for a separate 2000 conviction for driving
    under the influence with a prior felony, a California judge
    relied on the information and preliminary hearing transcripts
    from Wilson’s 1993 convictions to find numerous additional
    
    
    
    
                                  11
    facts about the earlier offenses, including that Wilson
    personally inflicted bodily injury, that the bodily injury was
    great, and that his victim was not an accomplice. These
    factual findings led the judge to conclude that Wilson’s 1993
    convictions qualified as two predicate offenses for purposes
    of California’s Three Strikes Law, and Wilson received an
    enhanced sentence of 25-years to life.
    
            The Ninth Circuit held that the state court’s factfinding
    was an unreasonable application of Apprendi. See id. at 1215
    (“It would be unreasonable to read Apprendi as allowing a
    sentencing judge to find the kinds of disputed facts at issue
    here. . . . The judge’s fact-finding seven years after the 1993
    conviction extended beyond any reasonable interpretation of
    the prior conviction exception.”). Chief Judge Kozinski
    dissented, stating: “The Supreme Court hasn’t straightened all
    this out. . . . AEDPA deference can be a bitter pill to swallow.
    In some habeas cases, we must reject what appear to be valid
    constitutional claims because petitioner’s rights have not yet
    been clearly established by the Supreme Court.” Id. at 1217
    (Kozinski, C.J., dissenting) (citations omitted).
    
           Although it is possible that Wilson was correctly
    decided while Portalatin, Davis, and Chief Judge Kozinski’s
    dissent in Wilson were all in error, it is immaterial for
    AEDPA purposes which line of analysis is correct. The mere
    fact of a difference of opinion among courts of appeals leads
    ineluctably to the conclusion that a state court cannot run
    afoul of AEDPA regardless of which of these two paths it
    chooses.
    
          Stated differently, I am loath to conclude that the
    United States Court of Appeals judges who decided
    Portalatin and Davis are not “fairminded.” Yarborough, 541
    
    
    
    
                                   12
    U.S. at 664. Indeed, the intersection of criminal procedure
    and constitutional law often presents difficult questions upon
    which reasonable minds can differ. 5 And while it is true that
    no Supreme Court decision explicitly authorized the state
    judge to delve into Garrus’s prior conviction, the fact that no
    decision of the Court prohibited her from doing so is
    dispositive under AEDPA. Unless and until the Supreme
    Court overrules or modifies Almendarez-Torres, state courts
    cannot properly be held to have violated the Constitution
    when they find facts at sentencing to determine whether a
    recidivist statute applies. For that reason, I respectfully
    dissent.
    
    
    
    
          5
            See, e.g., Melendez-Diaz v. Massachusetts, 
    557 U.S. 305
     (2009) (5-4 decision); Apprendi, 
    530 U.S. 466
     (5-4
    decision); Almendarez-Torres, 
    523 U.S. 224
     (5-4 decision).
    
    
    
    
                                  13
    GREENAWAY, JR., Circuit Judge, dissenting, joined by
    CHAGARES, HARDIMAN, and VANASKIE, Circuit
    Judges.
    
    
            Under the Anti-Terrorism and Effective Death Penalty
    Act of 1996 (“AEDPA”), Congress vested the Supreme
    Court — and only the Supreme Court — with the authority to
    determine clearly established law for purposes of analyzing
    an inmate‟s federal challenge to a state court judgment.
    Today, the majority feigns fidelity to this enduring tenet of
    AEDPA jurisprudence. In the process, the majority assumes
    the role of legislator, rewriting AEDPA to add this Court,
    along with the Supreme Court, as the two judicial bodies
    capable of delineating clearly established law. Armed with
    this newly created authority, the majority wades through
    murky Supreme Court precedent and emerges with what it
    purports to be an unassailable legal principle: that the 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 when applying a
    state recidivism statute.
    
           Unlike the majority, I cannot discern any principle in
    Apprendi or other authoritative Supreme Court precedent that
    would render this interpretation of the prior-conviction
    exception objectively unreasonable, the deferential standard
    by which we must judge the state court‟s determination.
    Indeed, the majority identifies not one Supreme Court case
    expounding on the contours of the amorphous prior-
    conviction exception. This lack of clarity coupled with the
    inherent tension between Apprendi and Almendarez-Torres v.
    United States, 
    523 U.S. 224
     (1998) — a controlling case the
    majority brushes aside as having limited relevance — belies
    
    
    
    
                                  1
    the majority‟s triumphant conclusion that the state court‟s
    determination was objectively unreasonable.
    
           I do not disagree that the majority‟s interpretation of
    the prior-conviction exception is a reasonable and even
    favorable one, preventing an otherwise seemingly inequitable
    result. Of course, our task is not to simply choose the
    preferred reading of an ambiguous legal phrase. Absent
    guidance from the Supreme Court, we are left to determine
    whether the state court‟s interpretation was objectively
    unreasonable. Given that this area of law is, at best, in a state
    of flux, AEDPA “demands that [the] state-court decision[] be
    given the benefit of the doubt.” Renico v. Lett, --- U.S. ---,
    ---, 
    130 S. Ct. 1855
    , 1862 (2010) (internal quotation marks
    and citation omitted). For this reason, I am compelled to
    respectfully dissent.
    
         I. AEDPA Imposes a High Threshold
    
            While the majority outlines the basic AEDPA
    framework governing our inquiry, AEDPA‟s prominent role
    in this case requires further elaboration.
    
           As amended by AEDPA, 28 U.S.C. § 2254 provides,
    in pertinent part: “[A] circuit judge . . . shall entertain an
    application for a writ of habeas corpus in behalf of a person in
    custody pursuant to the judgment of a State court only on the
    ground that he is in custody in violation of the Constitution or
    laws or treaties of the United States.” 28 U.S.C. § 2254(a).
    “[W]ith respect to any claim that was adjudicated on the
    merits in State court proceedings,” the writ shall not issue
    unless the adjudication of the claim “resulted in a decision
    that was contrary to, or involved an unreasonable application
    of, clearly established Federal law, as determined by the
    
    
    
    
                                   2
    Supreme Court of the United States” or was “based on an
    unreasonable determination of the facts in light of the
    evidence presented in the State court proceeding.” Id. §
    2254(d)(1)-(2).
    
            A state court decision is “contrary to” Supreme Court
    precedent “if the state court applies a rule that contradicts the
    governing law set forth in [Supreme Court] cases,” or “if the
    state court confronts a set of facts that are materially
    indistinguishable from a decision of th[e] Court and
    nevertheless arrives at a result different from [the Court‟s]
    precedent.” Williams v. Taylor, 
    529 U.S. 362
    , 405-06 (2000).
    A state court decision involves an unreasonable application of
    federal law “if the state court identifies the correct governing
    legal rule from [the Supreme] Court‟s cases but unreasonably
    applies it to the facts of the particular state prisoner‟s case.”
    Id. at 407. To qualify as an “unreasonable application” of
    clearly established federal law, the state court‟s application
    must be objectively unreasonable. Id. at 409. That the state
    court decision was incorrect or erroneous is insufficient if the
    error was nonetheless objectively reasonable. Id. at 410; see
    also Renico, 130 S. Ct. at 1862 (“[A]n unreasonable
    application of federal law is different from an incorrect
    application of federal law.” (quoting Williams, 529 U.S. at
    410)). “Indeed, „a federal habeas court may not issue the writ
    simply because that court concludes in its independent
    judgment that the relevant state-court decision applied clearly
    established federal law erroneously or incorrectly.‟” Renico,
    130 S. Ct. at 1862 (quoting Williams, 529 U.S. at 411).
    
           As a result, the “contrary” and “unreasonable
    application” thresholds are “highly deferential . . . for
    evaluating state-court rulings, which demand[] that state-court
    decisions be given the benefit of the doubt.” Cullen v.
    
    
    
    
                                   3
    Pinholster, --- U.S. ---, ---, 
    131 S. Ct. 1388
    , 1398 (2011)
    (quoting Woodford v. Visciotti, 
    537 U.S. 19
    , 24 (2002) (per
    curiam)). These standards are “„difficult to meet,‟ because
    the purpose of AEDPA is to ensure that federal habeas relief
    functions as a „guard against extreme malfunctions in the
    state criminal justice systems,‟ and not as a means of error
    correction.” Greene v. Fisher, --- U.S. ---, ---, 
    132 S. Ct. 38
    ,
    43 (2011) (quoting Harrington v. Richter, --- U.S. ---, ---, 
    131 S. Ct. 770
    , 786 (2011)).
    
            I agree with the majority that the focus of our inquiry
    is on the “unreasonable” prong because the state court
    identified controlling Supreme Court precedent.             See
    Williams, 529 U.S. at 406 (“[A] run-of-the-mill state-court
    decision applying the correct legal rule from our cases to the
    facts of a prisoner‟s case would not fit comfortably within §
    2254(d)(1)‟s „contrary to‟ clause.”). As such, we can grant
    Garrus‟s petition only if the sentencing court‟s application of
    Pennsylvania‟s recidivism statute transcended the bounds of
    this undeniably deferential framework.
    
        II. Majority’s Discussion         of    Supreme      Court
           Precedent Falls Short
    
           It is undeniable that the majority‟s interpretation of
    Apprendi‟s prior-conviction exception cannot stand in the
    absence of clearly established law. See Howes v. Fields, ---
    U.S. ---, ---, 
    132 S. Ct. 1181
    , 1187 (2012) (rejecting a circuit
    court‟s determination that Supreme Court precedent clearly
    established a categorical rule regarding custodial
    interrogations of inmates). Recognizing its obligation, the
    majority spends pages examining Supreme Court precedent.
    Yet nowhere in that examination does the majority grapple
    with precedent that undermines its position. This principled
    
    
    
    
                                   4
    avoidance is the only means by which the majority can reach
    the conclusion that Supreme Court precedent clearly
    establishes that it would be objectively unreasonable to
    interpret the phrase “the fact of a prior conviction” as the state
    court did in this case.
    
           I do not disagree with the majority that Apprendi is at
    the forefront of our inquiry. I do disagree, however, with the
    majority‟s perception that Apprendi is the be-all and end-all
    of our inquiry. The majority‟s singular focus is apparent at
    the beginning of its opinion, stating that the “[k]ey” to
    resolving this case involves answering “whether, pursuant to
    AEDPA, the state court unreasonably applied Apprendi.”
    (Majority Op. at 3.) However, as the majority acknowledges,
    Garrus was sentenced under 42 Pa. Cons. Stat. § 9714,
    Pennsylvania‟s recidivism statute. Despite this admission,
    Almendarez-Torres — a critical Supreme Court case
    examining a sentencing court‟s power to engage in
    factfinding when applying a recidivism statute — plays
    second fiddle to Apprendi in the majority‟s opinion. And
    when the majority does address Almendarez-Torres, it
    sidesteps the very logic in Almendarez-Torres that casts even
    the slightest doubt on the notion that the majority‟s
    interpretation of the prior-conviction exception is clearly
    established.
    
           Almendarez-Torres involved a federal statute that
    permitted an enhanced penalty for any person unlawfully in
    the United States who had previously been deported after
    being convicted of an aggravated felony. 523 U.S. at 226.
    The defendant pled guilty to being in the United States,
    without permission, after being deported. Id. At sentencing,
    the defendant argued that the enhancement should not apply
    because his three previous convictions for aggravated
    
    
    
    
                                    5
    felonies, which the defendant did not contest, were not
    charged in the current indictment. Id. at 227. The district
    court rejected this argument, found the existence of the prior
    convictions, and applied the sentence enhancement. Id. The
    Fifth Circuit affirmed. Id. at 227-28.
    
            The Supreme Court held that the district court properly
    treated the defendant‟s prior convictions as a sentencing
    factor and not a separate offense. Id. at 235. The Court
    repeatedly stressed that its analysis was predicated on the
    unique role recidivism plays at sentencing. See id. (“At the
    outset, we note that the relevant statutory subject matter is
    recidivism. That subject matter — prior commission of a
    serious crime — is as typical a sentencing factor as one might
    imagine.”); id. (“With recidivism as the subject matter in
    mind . . . .”); id. at 241 (“[The statute at issue] involves one of
    the most frequently found factors that affects sentencing —
    recidivism.”); id. at 243 (“[T]he sentencing factor at issue
    here — recidivism — is a traditional, if not the most
    traditional, basis for a sentencing court‟s increasing an
    offender‟s sentence.”). The Court noted that, historically,
    recidivism operated outside of the general framework
    requiring elements of an offense be submitted to a jury
    because “recidivism „does not relate to the commission of the
    offense, but goes to the punishment only, and therefore . . .
    may be subsequently decided.‟” Id. (quoting Graham v. West
    Virginia, 
    224 U.S. 616
    , 624 (1912)).
    
          Two years after Almendarez-Torres, the Supreme
    Court rendered a decision in what we have described as its
    “seminal case” on sentencing — Apprendi. Reinhold v.
    Rozum, 
    604 F.3d 149
    , 152 (3d Cir. 2010). In Apprendi, the
    defendant received an enhanced sentence of twelve years for
    weapon offenses punishable by a statutory maximum of ten
    
    
    
    
                                    6
    years, based on a determination by the sentencing court, not
    the jury, that the crime was racially motivated. 530 U.S. at
    470-71. Rejecting this approach, the Court pronounced that
    the Sixth Amendment required that “[o]ther than the fact of a
    prior conviction, any fact that increases the penalty for a
    crime beyond the prescribed statutory maximum must be
    submitted to a jury, and proved beyond a reasonable doubt.”
    Id. at 490. Central to the Court‟s determination was the fact
    that the hate crime enhancement required a finding that the
    defendant‟s purpose was to intimidate on the basis of race —
    an inquiry into the defendant‟s mens rea, an element of the
    offense. Id. at 492-93.
    
           The Court attempted to dispel any apparent tension
    between the rule announced in Apprendi and the Court‟s
    decision in Almendarez-Torres. “Whereas recidivism „does
    not relate to the commission of the offense‟ itself, New
    Jersey‟s biased purpose inquiry goes precisely to what
    happened in the „commission of the offense.‟” Id. at 496
    (quoting Almendarez-Torres, 523 U.S. at 230). But the Court
    was cognizant that “it is arguable that Almendarez-Torres was
    incorrectly decided” based on a “logical application” of the
    Court‟s analysis in Apprendi. Id. at 489. In the end, the
    Court reasoned that Almendarez-Torres “represents at best an
    exceptional departure” from Apprendi. Id. at 487. While the
    Apprendi Court provided less than unbridled support for
    Almendarez-Torres, it is clear that Almendarez-Torres had
    continuing vitality after Apprendi.
    
           The majority devotes no attention to the integral role
    recidivism played in Almendarez-Torres, instead trying to
    minimize     Almendarez-Torres‟s    significance    entirely.
    Quoting Apprendi, the majority refers to Almendarez-Torres
    as having “limited” and “narrow” application. (Majority Op.
    
    
    
    
                                 7
    at 15 (quoting Apprendi, 530 U.S. at 488 n.14, 489).) Put in
    its proper light, however, this characterization in no way
    subverts the importance of Almendarez-Torres to Garrus‟s
    case.
    
           Apprendi did not involve the application of a
    recidivism statute. Instead, Apprendi addressed a hate crime
    enhancement that inquired as to the defendant‟s mens rea,
    which the Court iterated was “as close as one might hope to
    come to a core criminal offense „element.‟” 530 U.S. at 493.
    By contrast, Almendarez-Torres expressly excluded
    recidivism as an exception to the nascent legal principle
    enshrined three years later in Apprendi. Almendarez-Torres,
    523 U.S. at 244 (“[T]o hold that the Constitution requires that
    recidivism be deemed an „element‟ of petitioner‟s offense
    would mark an abrupt departure from a longstanding tradition
    of treating recidivism as going to the punishment only.”
    (internal quotation marks and citation omitted)). As a result,
    it is unsurprising that Apprendi ensured that 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 continuing vitality of Almendarez-Torres, we
    addressed whether Almendarez-Torres‟s viability had been
    short-lived. Because the Apprendi Court expressly declined
    to overrule Almendarez-Torres, we unsurprisingly applied
    Almendarez-Torres and held that predicate offenses under a
    recidivism statute need not be charged in an indictment and
    submitted to the jury. See United States v. Weaver, 
    267 F.3d 8
    231, 250 (3d Cir. 2001) (“Recently, in Apprendi[], the Court
    upheld the validity of Almendarez-Torres . . . .”). We have
    since reaffirmed the viability of Almendarez-Torres and have
    not retreated from this determination. United States v.
    Arrelucea-Zamudio, 
    581 F.3d 142
    , 157 n.15 (3d Cir. 2009)
    (“Although several Supreme Court decisions have cast doubt
    on the statute‟s continuing constitutional viability 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 recognize 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 27
    , 37 n.12 (1st Cir. 2012);
    United States v. Nigg, 
    667 F.3d 929
    , 935-36 (7th Cir. 2012);
    United States v. Ruiz-Apolonio, 
    657 F.3d 907
    , 921 (9th Cir.
    2011); United States v. McMurray, 
    653 F.3d 367
    , 371 (6th
    Cir. 2011); United States v. Beckstrom, 
    647 F.3d 1012
    , 1020
    (10th Cir. 2011); United States v. Smith, 
    640 F.3d 358
    , 369
    (D.C. Cir. 2011); United States v. Olalde-Hernandez, 
    630 F.3d 372
    , 377 (5th Cir. 2011); United States v. Mason, 
    628 F.3d 123
    , 134 (4th Cir. 2010); United States v. Alston, 
    625 F.3d 397
    , 406 (8th Cir. 2010).
    
    
    
    
                                  9
       III. State Court’s Determination Was Objectively
           Reasonable
    
           Against this proper legal backdrop, there can be no
    doubt that, for purposes of sentencing under Pennsylvania‟s
    recidivism statute, the state court‟s determination that
    Garrus‟s second-degree burglary conviction could be treated
    as a first-degree offense was not objectively unreasonable.
    Almendarez-Torres established that a sentencing court
    applying a recidivism statute that carries with it a sentence
    above the statutory maximum is permitted to engage in
    judicial factfinding regarding the defendant‟s prior
    convictions. In Apprendi, the Court clarified that such
    judicial factfinding was impermissible, except that relating to
    “the fact of a prior conviction.” 530 U.S. at 490. In other
    words, the exact undefined judicial factfinding permitted by
    Almendarez-Torres.
    
            Apprendi provides no guidance regarding the scope or
    meaning of the prior-conviction exception. For good reason,
    Apprendi‟s true import is not the establishment of the
    exception to the rule but the rule itself — that a judge cannot
    find facts regarding an element of the offense where the
    defendant faces a sentence above the statutory maximum.
    Apprendi did not need to expound on the scope of the prior-
    conviction exception because Apprendi was not, contrary to
    Almendarez-Torres, a recidivism case. The prior-conviction
    exception remains as amorphous and undefined as the day
    Apprendi was decided. See Kessee v. Mendoza-Powers, 
    574 F.3d 675
    , 676 (9th Cir. 2009) (“What is the scope of the
    „prior conviction‟ exception to the general rule that a
    sentencing judge may not make factual findings that increase
    the statutory maximum criminal penalty? The Supreme Court
    has not yet answered that question.”).
    
    
    
    
                                  10
           I do not deny that the majority‟s reading of the prior-
    conviction exception — prohibiting a sentencing court from
    applying a recidivism statute and finding a fact inconsistent
    with a prior conviction — is a reasonable interpretation.2
    Under AEDPA, that the majority‟s reading was reasonable
    does not ipso facto render all other readings patently
    unreasonable. See id. (noting that, under AEDPA, just
    because an appellate court‟s own interpretation of the 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 unreasonably, it follows that „the more general the rule‟ at
    issue — and thus the greater the potential for reasoned
    disagreement among fair-minded judges — „the more leeway
    state courts have in reaching outcomes in case-by-case
    determinations.” Renico, 130 S. Ct. at 1864 (quoting
    Yarborough v. Alvarado, 
    541 U.S. 652
    , 664 (2004)). In my
    view, the prior-conviction exception is sufficiently general
    and undefined, such that we must, under AEDPA, defer to the
    
    2
       I concede that the state court‟s decision in this case
    produced a seemingly inequitable result. We have recognized
    that a guilty plea binds a defendant “to the accuracy of the
    facts set forth in the indictment.” United States v. Parker,
    
    874 F.2d 174
    , 177 n.1 (3d Cir. 1989). The state court‟s
    determination would appear to run counter to this principle
    because Garrus was not held to the facts he pled to as part of
    the judicial process related to his 1997 burglary conviction.
    However, Almendarez-Torres simply treats recidivism
    differently. While there is no doubt that the majority‟s moral
    compass is well-aligned, morality cannot trump our duty to
    faithfully apply Supreme Court precedent.
    
    
    
    
                                  11
    state court. Given the logic of Almendarez-Torres and the
    fact that the Supreme Court has yet to clarify the scope of the
    prior-conviction exception, I simply cannot subscribe to the
    majority‟s finding that the state court‟s decision here was
    objectively unreasonable.
    
           A few additional points bear mentioning. First, the
    majority opinion suffers from an internal inconsistency.
    Relying as it does on Apprendi, a case founded on the Sixth
    Amendment right to a jury trial, one would expect the
    majority to require that a jury determine whether or not
    Garrus‟s prior conviction for burglary qualifies as a crime of
    violence. Yet the majority does the opposite, requiring that
    the judge determine that Garrus‟s prior conviction was
    necessarily not a crime of violence.
    
           Second, the majority notes that “[n]o existing
    precedent so much as hints that [the state court‟s] paradoxical
    interpretation of Apprendi might be reasonable.” (Majority
    Op. at 20.) This point suffers from two flaws. One could
    easily reverse the logic of this statement and assert that no
    Supreme Court precedent suggests that the majority‟s
    interpretation is the only reasonable interpretation. Under
    AEDPA, that is sufficient to uphold the state court‟s
    determination.
    
          More importantly, the proposition is simply inaccurate.
    The majority makes clear that it is troubled by the fact that
    Garrus pled guilty to second degree burglary only to have a
    judge find facts years later inconsistent with that prior
    conviction and without affording Garrus procedural
    safeguards. In United States v. Santiago, 
    268 F.3d 151
     (2d
    Cir. 2001), then-Judge Sotomayor, writing for the court,
    addressed whether the requirement under the federal
    
    
    
    
                                  12
    recidivism statute, the Armed Career Criminal Act, that the
    defendant have three predicate convictions “committed on
    occasions different from one another,” is a factual issue that
    must be submitted to a jury under Apprendi. Id. at 152. In
    resolving the issue in the negative, Judge Sotomayor stressed
    that courts make determinations all the time in the context of
    recidivism for which the Apprendi procedural safeguards do
    not attach. See id. at 156 (“The determination of „the fact of a
    prior conviction‟ implicitly entails many subsidiary findings,
    not the least of which is that the defendant being sentenced is
    the same defendant who previously was convicted of those
    prior offenses, a fact that could be quite controversial indeed.
    Determination of this question would not necessarily come
    with the „procedural safeguards‟ noted in Apprendi.”). Judge
    Sotomayor went on to conclude:
    
                  In short, we read Apprendi as
                  leaving to the judge, consistent
                  with due process, the task of
                  finding not only the mere fact of
                  previous convictions but other
                  related issues as well. Judges
                  frequently must make factual
                  determinations for sentencing, so
                  it is hardly anomalous to require
                  that they also determine the „who,
                  what, when, and where‟ of a prior
                  conviction.
    
    Id. Santiago refutes the majority‟s unyielding interpretation
    of the phrase “the fact of a prior conviction,” which is even
    more meaningful considering that Santiago was not a case
    decided under the highly deferential AEDPA framework.
    
    
    
    
                                  13
           Finally, there is little doubt that Almendarez-Torres‟s
    continuing vitality is in jeopardy. See Shepard v. United
    States, 
    544 U.S. 13
    , 27-28 (2005) (Thomas, J., concurring)
    (“Almendarez-Torres . . . has been eroded by this Court‟s
    subsequent Sixth Amendment jurisprudence, and a majority
    of the Court now recognizes that Almendarez-Torres was
    wrongly decided. . . . [I]n an appropriate case, this Court
    should consider Almendarez-Torres‟ continuing viability.”).
    However, we must apply Almendarez-Torres until the
    Supreme Court holds otherwise. See Hohn v. United States,
    
    524 U.S. 236
    , 252-53 (1998) (“Our decisions remain binding
    precedent until we see fit to reconsider them, regardless of
    whether subsequent cases have raised doubts about their
    continuing vitality.”); Rodriguez de Quijas v. Shearson/Am.
    Express, Inc., 
    490 U.S. 477
    , 484 (1989) (“If a precedent of
    this Court has direct application in a case, yet appears to rest
    on reasons rejected in some other line of decisions, the Court
    of Appeals should follow the case which directly controls,
    leaving to this Court the prerogative of overruling its own
    decisions.”).
    
           For these reasons, I respectfully dissent.
    
    
    
    
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