FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. No. 5:13-CV-00180-HE)
A. Stevenson, Equal Justice Initiative, Montgomery, Alabama
(Jennae R. Swiergula and James M. Hubbard, Equal Justice
Initiative, Montgomery, Alabama; Perry W. Hudson, Hudson Law
Office, Oklahoma City, Oklahoma, with him on the briefs), for
Mansinghani, Deputy Solicitor General (E. Scott Pruitt,
Attorney General of Oklahoma; Diane L. Slayton, Assistant
Attorney General, with him on the briefs), Oklahoma City,
Oklahoma, for Respondent-Appellee.
BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.
BRISCOE, Circuit Judge.
Budder was convicted by an Oklahoma jury of several violent
nonhomicide crimes committed when he was sixteen years old.
After sentence modification on direct appeal, he received
three life sentences and an additional sentence of twenty
years, all to run consecutively. He will not be eligible for
parole under Oklahoma law until he has served 131.75 years in
prison. Budder filed a petition for writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, contending, as he did on
direct appeal, that his sentence violates the Eighth
Amendment. In support, he cites Graham v. Florida,
560 U.S. 48 (2010), which held that sentencing juvenile
offenders who have not committed homicide crimes to life in
prison without a meaningful opportunity for release is
unconstitutional. The district court denied Budder's
petition, and he appeals. We reverse and remand with
instructions to grant Budder's petition.
early morning hours of August 11, 2009, when he was sixteen
years old, Budder stabbed a seventeen-year-old girl
approximately seventeen times and raped her multiple times.
On April 1, 2010, an Oklahoma state jury convicted Budder of
two counts of first degree rape, one count of assault and
battery with a deadly weapon, and one count of forcible oral
sodomy. The jury recommended punishment of life without
parole for each of the rape charges, life with parole for the
assault charge, and twenty years' imprisonment for the
forcible sodomy charge. On May 4, 2010, the state trial court
sentenced accordingly and ordered the sentences to run
than two weeks later, the Supreme Court decided
Graham, which held that "the Eighth Amendment
prohibits a state from imposing a life without parole
sentence on a juvenile nonhomicide offender."
Id. at 75. Budder filed a direct appeal with the
Oklahoma Court of Criminal Appeals (OCCA) and argued that,
under Graham, his sentence was unconstitutional and
must be modified. On October 24, 2011, the OCCA modified
Budder's two life without parole sentences to life with
the possibility of parole, but again ordered all of his
sentences (three life sentences and a twenty-year sentence)
to run consecutively. Aplt. App. at 238-39.
Oklahoma law, a prisoner must serve 85% of his sentence
before he will be eligible for parole. See Okla.
Stat. tit. 21, § 13.1. For purposes of parole, a life
sentence is calculated as 45 years. Anderson v.
State, 2006 OK CR 6, ¶ 24, 130 P.3d 273, 282-283
(Okla. 2006). Thus, Budder's sentences are considered to
total 155 years, and he must serve 131.75 years before he
will be eligible for parole.
requested rehearing before the OCCA, again relying on
Graham, and asked that his sentences be modified to
run concurrently rather than consecutively in order to
provide him with a potential of parole in his lifetime. The
OCCA denied this petition on November 29, 2011. Aplt. App. at
timely filed his petition for habeas relief in federal
district court on February 20, 2013. See 28 U.S.C.
§ 2244(d)(1)(A); Lawrence v. Florida, 549 U.S.
327, 333 (2007). The magistrate judge issued a Report and
Recommendation concluding that Graham controlled and
Budder should be resentenced. The district court declined to
adopt that recommendation and denied Budder's petition,
but granted a certificate of appealability.
habeas court tasked with review of the OCCA's ruling, our
review is circumscribed by § 2254(d) of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See 28 U.S.C. § 2254(d);
Harrington v. Richter, 562 U.S. 86, 92 (2011).
"AEDPA erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in
state court." Burt v. Titlow, __U.S.__, 134
S.Ct. 10, 16 (2013). We may reverse the state court's
judgment only if the court's decision "was contrary
to, or involved an unreasonable application of, clearly
established Federal law" or "was based on an
unreasonable determination of the facts in light of the
evidence presented." 28 U.S.C. § 2254(d). This high
burden is placed on state habeas petitioners because
"habeas corpus is a 'guard against extreme
malfunctions in the state criminal justice systems, ' not
a substitute for ordinary error correction through
appeal." Harrington, 562 U.S. at 102-03
(quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5
(1979) (Stevens, J., concurring in judgment)). The Court has
also cautioned, however, that "'[e]ven in the
context of federal habeas, deference does not imply
abandonment or abdication of judicial review, ' and
'does not by definition preclude relief.'"
Brumfield v. Cain, __U.S.__, 135 S.Ct. 2269, 2277
(2015) (quoting Miller-El v. Cockrell, 537 U.S. 322,
AEDPA's three prongs - contrary to clearly established
federal law, unreasonable application of clearly established
federal law, and unreasonable determination of the facts -
presents an independent inquiry. 28 U.S.C. § 2254(d);
see also Williams v. Taylor, 529 U.S. 362, 404-05
(2000) (holding that the "contrary to" and
"unreasonable application" clauses have independent
meaning"). Budder argues that the OCCA's decision
regarding his sentence is contrary to clearly established
federal law, citing that portion of § 2254(d)(1),
we focus on this prong of AEDPA.
under § 2254(d)(1) is a two-step process. See
Yarborough v. Alvarado, 541 U.S. 652, 660-63 (2004). The
first step is to determine the "relevant clearly
established law." Id. at 660 ("We begin by
determining the relevant clearly established law."). As
used in the context of AEDPA, "[c]learly established
Federal law" means only Supreme Court holdings, not the
Court's dicta. Id. Federal courts must
"look for 'the governing legal principle or
principles set forth by the Supreme Court at the time the
state court renders its decision.'" Id. at
661 (quoting Lockyer v. Andrade, 538 U.S. 62, 71, 72
(2003)). Thus, at this stage of the inquiry, we look only to
Supreme Court decisions that existed at the time the state
court rendered its decision, not at later opinions or
opinions from lower courts.
the relevant clearly established law has been determined, the
second step is to examine the state court's judgment to
determine whether it was either "contrary to, or
involved an unreasonable application of" that clearly
established law. 28 U.S.C. § 2254(d)(1); see also
Carey v. Musladin, 549 U.S. 70, 74-77 (2006) (outlining
the relevant Supreme Court precedent in Part II.A. and then
considering the state court's application of that
precedent in Part II.B.); Yarborough, 541 U.S. at
663 ("We turn now to the case before us and ask if the
state-court adjudication of the claim 'involved an
unreasonable application' of clearly established law . .
. ."); Williams, 529 U.S. at 390-98
(discussing, in Part III, the precedent set in Strickland
v. Washington, 466 U.S. 668 (1984), and then, in Part
IV, concluding that the state court's decision was both
contrary to and involved an unreasonable application of that
precedent). A state court decision is "contrary to"
clearly established federal law "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 Supreme Court case "and
nevertheless arrives at a result different from [that]
precedent." Williams, 529 U.S. at 405;
Holland v. Allbaugh, 824 F.3d 1222, 1227 (10th Cir.
2016). We must decide in the first instance what governing
law has been set forth. Only after we have done so may we
determine whether a state court's decision conflicts with
that governing law. If we conclude at this ...