Warren v. Kyler ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    9-7-2005
    Warren v. Kyler
    Precedential or Non-Precedential: Precedential
    Docket No. 03-2190
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
    Recommended Citation
    "Warren v. Kyler" (2005). 2005 Decisions. Paper 492.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/492
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _______________________
    No. 03-2190
    _______________________
    DANIEL K. WARREN, JR.,
    Appellant
    v.
    KENNETH D. KYLER,
    THE DISTRICT ATTORNEY OF THE COUNTY OF
    LEHIGH, THE ATTORNEY GENERAL OF THE STATE
    OF PENNSYLVANIA,
    Appellees
    ______________________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Civil No. 02-CV-997)
    District Judge: Honorable Marvin Katz
    _______________________
    Argued July 11, 2005
    Before: ALITO and BECKER, Circuit Judges
    and SHADUR, District Judge *
    (Filed September 7, 2005 )
    Mark Diamond (Argued)
    Box 287356
    Yorkville Station
    New York, NY 10128
    Counsel for Appellant
    James B. Martin
    District Attorney of Lehigh County
    Matthew D. Weintraub (Argued)
    Chief Deputy District Attorney
    David J. Mussel
    Assistant District Attorney
    455 West Hamilton Street
    Allentown, PA 18101-1614
    Counsel for Appellee
    ________________________
    * Honorable Milton I. Shadur, United States District Judge
    for the Northern District of Illinois, sitting by designation.
    2
    OPINION OF THE COURT
    ________________________
    SHADUR, District Judge:
    Daniel Warren (“Warren”) is currently in the State
    Correctional Institution at Huntingdon, Pennsylvania, serving
    a prison sentence of 10 to 20 years imposed after he entered a
    negotiated guilty plea to one count of burglary on October 9,
    1998. Warren now claims that the Commonwealth’s
    imposition of that sentence has violated his federal due
    process rights, and he seeks federal habeas corpus relief under
    
    28 U.S.C. §2254
     (“Section 2254”) on that basis. Because we
    conclude that the requirements of Section 2254 have not been
    met, we affirm the District Court’s denial of habeas relief.
    Factual and Procedural Background
    Under the terms of Warren’s plea agreement, other
    pending charges were dropped and the burglary was treated as
    a “strike two” offense by the Commonwealth. That latter
    aspect of the agreement meant that the Pennsylvania
    mandatory sentencing statute, 
    42 Pa. Cons. Stat. §9714
    (“Section 9714”), was applied during Warren’s sentencing.
    At that time Section 9714(a)(1) provided:
    Any person who is convicted in any court of this
    Commonwealth of a crime of violence shall, if at the
    time of the commission of the current offense the
    person had previously been convicted of a crime of
    violence and has not rebutted the presumption of high
    3
    risk dangerous offender...be sentenced to a minimum
    sentence of ten years of total confinement,
    notwithstanding any other provision of this title or
    other statute to the contrary.
    That “presumption of high risk dangerous offender” applied in
    Warren’s case because the terms of Section 9714(b) were met: He
    had a prior conviction for a crime of violence that had taken place
    fewer than seven years before the charged “strike two” offense. To
    rebut the presumption, Section 9714(c) required Warren to present
    evidence to the court at a hearing and required the sentencing judge
    to consider 12 case-specific factors before deciding whether the
    evidence presented was sufficient. After finding that no evidence
    presented had overcome the operable presumption against Warren,
    the sentencing judge imposed the sentence mandated by Section
    9714 on December 28, 1998.
    Shortly thereafter Warren sought to have the court reconsider
    the sentence imposed. But that effort was rebuffed on February 5,
    1999 because Warren’s attorney had initiated a direct appeal to the
    Superior Court of Pennsylvania. Eleven days later the direct appeal
    was discontinued by Warren’s attorney. Then Warren’s later motions
    seeking to revive his direct appeal by treating his submissions nunc
    pro tunc were denied, effectively ending any direct review of
    Warren’s sentence.
    That chain of events formed the basis for Warren’s first
    petition for post-conviction collateral relief under Pennsylvania’s
    Post Conviction Relief Act, 
    42 Pa. Cons. Stat. §9541
    . Warren
    claimed ineffectiveness of trial counsel because his direct appeal had
    been discontinued without his consent. After post-conviction
    counsel was appointed, an evidentiary hearing was conducted by the
    post-conviction court to assess his claim on June 20, 2000. Shortly
    4
    after that hearing Warren filed motions claiming ineffectiveness of
    his post-conviction counsel. On August 21, 2000 the post-conviction
    court issued a ruling that dismissed both of Warren’s ineffectiveness-
    of-representation claims, and Warren appealed that decision to the
    Superior Court of Pennsylvania.
    After the appeal had been filed, Warren submitted an
    application to the Superior Court seeking a determination as to
    whether his waiver of counsel as to that appeal was knowing,
    intelligent and voluntary. In response the Superior Court remanded
    the appeal to the post-conviction court for the purpose of conducting
    a colloquy. On February 20, 2001 the post-conviction court
    determined that the waiver had been knowing, intelligent and
    voluntary, so that Warren continued to represent himself on his post-
    conviction appeal.
    In the midst of the just-described waiver proceedings, Warren
    filed a second post-conviction petition on January 11, 2001. This
    time he challenged the constitutionality of his sentence in light of the
    Pennsylvania Supreme Court’s invalidation of Section 9714 in
    Commonwealth v. Butler, 
    760 A.2d 384
     (Pa. 2000). But because
    that second petition was filed while his original post-conviction
    appeal was still pending, it was dismissed on January 22, 2001.
    On December 14, 2001 the Superior Court disposed of all
    issues related to Warren’s post-conviction challenges. First the court
    affirmed the finding that Warren’s waiver of counsel on the appeal
    had been knowing, intelligent and voluntary. It also affirmed the
    rejection of the ineffectiveness claims made in Warren’s first post-
    conviction petition. Finally, the court directly addressed the
    constitutional claim raised by Warren in his second post-conviction
    petition and explicitly declined to apply Butler (emphasis in
    original):
    5
    It is axiomatic that a new rule of law, even if given full
    retroactive effect, will not be applied to a collateral
    proceeding attacking the conviction. Commonwealth
    v. Tilley, 
    780 A.2d 649
     (Pa. 2001). Instead, for a new
    rule of law to be applied to a proceeding, the issue had
    to be preserved at all stages, including on direct appeal.
    Id.; see also Commonwealth v. Todaro, 
    701 A.2d 1343
    (Pa. 1997)(a new rule of law is not applied in a
    collateral attack on a conviction).1 In the present case,
    Appellant did not raise the constitutionality of the
    statute during his plea proceedings nor did he raise it
    during direct appeal. Hence, it cannot be applied in
    this collateral proceeding.
    1
    That analysis appears to overstate prior Pennsylvania law,
    as summarized in Commonwealth v. Gillespie, 
    516 A.2d 1180
    , 1183
    (Pa. 1986), in one respect:
    Simply stated, a new rule of law to which we give full
    retroactive effect, will not be applied to any case on
    collateral review unless that decision was handed
    down during the pendency of an appellant’s direct
    appeal and the issue was properly preserved there, or,
    as here, is non-waivable.
    Because the Superior Court had found Warren’s claim to be non-
    waivable, there was no need to preserve it “at all stages.” But
    because Butler was not handed down during the pendency of
    Warren’s direct appeal, the rejection of collateral review on that basis
    was a correct application of the Pennsylvania Supreme Court’s
    teaching.
    6
    Warren filed a petition for federal habeas corpus relief
    under Section 2254 on February 12, 2002, raising three
    objections to the state court proceedings. Two of those
    objections concerned the state court’s refusal to restore his
    direct right of appeal, and the third challenged the use of
    Section 9714 in his sentencing. All three objections were
    rejected, and the writ of habeas corpus was therefore denied,
    when the District Court adopted the report and
    recommendations of the magistrate judge on March 11, 2003.
    Warren then filed a timely appeal in this court. We
    granted Warren’s application for a certificate of appealability
    as to two issues: (1) whether the failure to apply Butler
    retroactively violated Warren’s due process rights, and (2)
    whether the application of Section 9714's burden shifting
    provision violated Warren’s due process rights independently
    of the ruling on the first issue. Because the District Court’s
    determination was based solely on the information contained
    in the state court record, our review of those issues is plenary
    (Marshall v. Hendricks, 
    307 F.3d 36
    , 50 (3d Cir. 2002)).
    Federal Habeas Standards
    To qualify for relief under Section 2254, Warren must
    demonstrate that “he is in custody in violation of the
    Constitution or laws or treaties of the United States” (Section
    2254(a)). As already stated, he contends that the state has
    violated his federal due process rights in either or both of two
    respects, We address his contentions in turn.
    Retroactivity as a Due Process Issue
    7
    As an initial basis for his claim that his due process
    rights have been violated, Warren attacks the Pennsylvania
    Superior Court’s decision not to apply Butler retroactively.
    Although that argument raises the issue of retroactivity in the
    context of habeas review, it is not one of the sort governed by
    the Supreme Court’s standard articulated in Teague v. Lane,
    
    489 U.S. 288
     (1989), because we are not asked to decide the
    applicability of a new federal rule of jurisprudence to an
    already concluded state proceeding. Instead the issue here is
    whether the Due Process Clause is implicated when a state
    court declines to give retroactive effect to one of its own
    decisions.
    We previously addressed a closely related issue in
    Fiore v. White, 
    149 F.3d 221
     (3d Cir. 1998). After the
    Pennsylvania Supreme Court had decided Commonwealth v.
    Scarpone, 
    634 A.2d 1109
     (Pa. 1993), interpreting a state
    statute, Fiore sought through state post-conviction
    proceedings to have that ruling applied retroactively to his
    case. When the state court declined that request, he filed a
    petition for federal habeas relief.
    In reviewing his petition, we first noted that “Fiore is
    entitled to relief only if federal law requires retroactive
    application of Scarpone” (Fiore, 
    149 F.3d at 224
    ). That
    limitation on the scope of our review stems from the Supreme
    Court’s reemphasis in Estelle v. McGuire, 
    502 U.S. 62
    , 67-68
    (1991) “that it is not the province of a federal habeas court to
    reexamine state-court determinations on state-law questions,”
    and it applies with equal force here.
    As for the question that we could properly address on
    habeas review--whether the United States Constitution
    required the state to apply its decision on a question of state
    law retroactively--we said this in Fiore, 
    149 F.3d at 224-25
    (some citations omitted):
    8
    The district court held, and Fiore maintains on
    appeal, that the Due Process and Equal
    Protection Clauses of the Fourteenth
    Amendment require retroactive application of
    Scarpone. This conclusion, however, is at odds
    with the Supreme Court’s longstanding position
    that “the federal constitution has no voice upon
    the subject” of retroactivity. Great Northern
    Ry. Co. v. Sunburst Oil & Refining Co., 
    287 U.S. 358
    , 364 (1932). While the Court has
    concluded that some federal criminal decisions
    should apply retroactively, it has made clear that
    state courts are under no constitutional
    obligation to apply their own criminal decisions
    retroactively. Thus, just as the Supreme Court
    has fashioned retroactivity rules for the federal
    courts based on principles of judicial integrity,
    fairness, and finality, see Teague v. Lane, the
    state courts are free to adopt their own
    retroactivity rules after independent
    consideration of these and other relevant
    principles.
    *     *     *
    Consistent with the Supreme Court’s
    admonition that federal courts not require
    retroactive application of state judicial
    decisions, this court has refused to require
    application of new state decisions in habeas
    proceedings.
    We recognize of course that our decision in Fiore was
    reversed by the Supreme Court in Fiore v. White, 
    531 U.S. 225
     (2001)(per curiam). But we do not read that outcome to
    9
    call into question the validity of the retroactivity analysis we
    expressed there.2      Instead the basis for the Supreme Court’s
    reversal in Fiore was a determination that retroactivity
    principles were not implicated at all. And that determination
    stemmed not from any independent review of the state
    decision, but rather from the Pennsylvania Supreme Court’s
    response to a certified question that characterized its Scarpone
    decision as a clarification of the statute, not as an
    announcement of a new rule of law (
    531 U.S. at 228
    ).
    That outcome highlights the fact that it matters
    whether a state decision has established a new rule of law or
    merely clarified existing state law. But important as it may
    be, we read nothing in Fiore that authorizes us to make that
    kind of distinction based on our independent analysis of the
    effect of a state court’s decision. Instead the earlier-identified
    Estelle v. McGuire principle requires that we heed the state
    court’s application of its own retroactivity principles.
    In this instance, the Pennsylvania Superior Court
    declined to apply Butler retroactively to Warren’s post-
    conviction appeal because it concluded that Pennsylvania
    retroactivity principles do not give retroactive force to new
    rules of law in the context of a collateral proceeding. That
    means that we are in precisely the same position as in Fiore,
    and we hold that precisely the same conclusion is appropriate.
    Moreover, it should be remembered that Fiore
    involved a state court’s interpretation of a state criminal
    2
    To be sure, the potential for such an outcome was present
    based on the Supreme Court’s having granted certiorari “to decide
    when, or whether, the Federal Due Process Clause requires a State to
    apply a new interpretation of a state criminal statute retroactively to
    cases on collateral review” (Fiore, 
    531 U.S. at 226
    ). But the Supreme
    Court never reached the merits of that question, and because no
    decision since then has cast doubt on our analysis, we continue to find
    our approach persuasive.
    10
    statute, while we deal here with a state court’s interpretation
    of the United States Constitution. It does not at all follow that
    the Supreme Court’s certification of such a state law issue to
    the Pennsylvania Supreme Court in Fiore suggests a like
    inquiry as to the federal constitutional question that we are
    called upon to resolve.
    In short, Warren’s failure to receive the benefit of the
    Butler decision was based on the Pennsylvania courts’
    application of their own established retroactivity doctrines.
    On habeas review we are in no position to second-guess the
    state courts’ determination as to that state law issue. We must
    rather review for a potential violation of federal law, and
    because we conclude that nothing in the Constitution requires
    states to apply their own decisions retroactively, we find no
    such violation.
    Indeed, even if it were to be assumed for the sake of
    argument that the federal Constitution governs the question
    whether Butler applies retroactively to a state collateral
    proceeding, we see no ground for reversal here. Surely the
    federal Constitution did not require the Pennsylvania Supreme
    Court to give Butler greater retroactive effect than that
    decision would have carried if it had been handed down by
    the United States Supreme Court--and as we explain at the
    end of the next section of this opinion, a United States
    Supreme Court holding such as that embodied in Butler
    would not be applicable retroactively in a federal collateral
    proceeding.
    Clearly Established Constitutional Violation
    As an alternative basis for habeas relief, Warren
    contends that the application of Section 9714's burden shifting
    provisions at the time of his sentencing was itself a violation
    of his federal due process rights. For him to succeed on that
    claim, we must conclude that Warren’s sentencing “was
    11
    contrary to, or involved an unreasonable application of,
    clearly established Federal law as determined by the Supreme
    Court of the United States” (Section 2254(d)(1)).3
    Williams v. Taylor, 
    529 U.S. 362
     (2000) interpreted
    Section 2254(d)(1) to establish two distinct paths that might
    lead to invalidation of a state conviction on habeas review.
    We rehearse those two alternatives briefly before analyzing
    their possible applicability to this case.
    First, federal habeas relief is warranted if the state
    conviction was “contrary to...clearly established Federal law.”
    That applies when a state court’s actions are “diametrically
    different” from or “mutually opposed” to clearly established
    law, either because the court ignores clear precedent
    altogether or because it “confronts a set of facts that are
    materially indistinguishable from a decision of this Court and
    nevertheless arrives at a result different from our precedent”
    (Williams, 
    529 U.S. at 406
    ).
    Second, federal habeas relief is also appropriate if the
    state conviction “involves an unreasonable application
    of...clearly established Federal law.” That encompasses cases
    in which the state court applies the proper Supreme Court
    precedent to specific facts in an objectively unreasonable way
    (id. at 409), or where the court unreasonably extends (or
    unreasonably refuses to extend) a clearly established rule (id.
    3
    Before we embark on that inquiry, it is important to note the
    very limited role that the Pennsylvania Supreme Court’s Butler
    decision plays here. Invalidation of Section 9714 on federal due
    process grounds less than two years after being applied to Warren’s
    case might perhaps indicate a reasonable basis on which to conclude
    that the provision was inconsistent with constitutional principles, but
    it does not say much about the much narrower Section 2254 inquiry
    as to whether its application at Warren’s sentencing was objectively
    unreasonable in light of United States Supreme Court holdings.
    12
    at 407).
    In either case we must first identify the applicable
    “clearly established Federal law.” In that regard it is clear
    from the terms of Section 2254(d)(1) that only Supreme Court
    law is included, and Williams further narrows the field to the
    holdings as opposed to the dicta of that Court (id. at 412).
    And we do not consider those holdings as they exist today,
    but rather as they existed “as of the time of the relevant state-
    court decision” (id.).
    Also relevant is the more difficult question pertaining
    to the appropriate level of particularity with which to view
    Supreme Court holdings for purposes of Section 2254 review.
    In Fischetti v. Johnson, 
    384 F.3d 140
    , 148 (3d Cir. 2004) we
    noted that “if one examines the Supreme Court decisions at a
    broad level of generality, the universe of state decisions that
    may be contrary to those decisions will expand.” And indeed
    a broad view might also be expected to increase the rate at
    which a state court’s application of (or failure to apply)
    Supreme Court holdings would be viewed as unreasonable.
    But based on our review of Supreme Court jurisprudence, we
    ultimately concluded that a “fact-specific” and “sharply
    focused” view of Supreme Court holdings is required for
    Section 2254 purposes (id. at 148-49).
    Given that analytical framework, we cannot conclude
    that the state court’s application of Section 9714's burden-
    shifting provision at the time of Warren’s sentence was an
    error that satisfies Section 2254's requirements for habeas
    relief. Warren’s argument to the contrary rests on his
    assertion that the provision violates the general constitutional
    principle that defendants must be viewed as innocent until
    proved guilty beyond a reasonable doubt. To that end he cites
    In re Winship, 
    397 U.S. 358
    , 364 (1970). That case--and
    many others since--establish quite clearly that any
    presumption against Warren as to an essential factual element
    of the charged burglary would be unconstitutional and would
    13
    warrant habeas relief.
    But the Section 9714 presumption did not apply to an
    element of the burglary offense. It applied instead in the
    context of determining the severity of punishment. And
    whether the Winship principle applies to that sort of situation
    has been the subject of significant uncertainty in Supreme
    Court thought--on that score, compare the discussion in such
    cases as Mullaney v. Wilbur, 
    421 U.S. 684
    , 698 (1975),
    Patterson v. New York, 
    432 U.S. 197
    , 206-11 (1977) and
    McMillan v. Pennsylvania, 
    477 U.S. 79
    , 84-91 (1986)
    (addressing the differences between those two earlier cases).
    McMillan in particular noted that “the extent to which
    due process forbids the reallocation or reduction of burdens of
    proof in criminal cases” was an unsettled question (id. at 86),
    and it expressed an “inability to lay down any ‘bright line’
    test” (id. at 91). Even so, the opinion did provide several
    guideposts that are relevant to the inquiry here. For example,
    the Court acknowledged that the Due Process Clause does not
    permit States to discard the presumption of innocence (id. at
    86-87). At the same time, it noted that the prosecution is not
    relieved of its burden to prove guilt if a sentencing factor
    “only becomes applicable after a defendant has been duly
    convicted of the crime for which he is to be punished” (id. at
    87). Based on that--as well as a number of other factors that
    we need not address here in detail4 --McMillan concluded that
    4
    Of course, were we faced with the task of assessing the
    constitutionality of Section 9714 as a matter of first impression (as we
    are not), a closer analysis of those other factors--such as the extent to
    which the sentencing factor alters the range of the sentence, the
    question whether the sentencing factor triggers a mandatory minimum
    as opposed to a mandatory maximum, or the likelihood that the
    sentencing factor could be used by the legislature to evade the
    requirements of Winship--would be required. In particular, we note
    that although Mullaney provides support for Warren’s argument, we
    14
    the application of a lower standard of proof to a sentencing
    factor is not always problematic in due process terms.
    Just months before Warren’s sentencing, Almendarez-
    Torres addressed many of the same questions the Court had
    faced in McMillan. While Almendarez-Torres did not decide
    the precise question of what burden of proof should apply
    when recidivism is used to enhance criminal punishment, it
    confirmed that recidivism need not be treated as an element of
    the offense to be charged as part of the indictment and proved
    beyond a reasonable doubt to a jury (523 U.S. at 247). In
    addition the Court held (id. at 244-45) that the outcome of the
    due process analysis is unchanged even if recidivism is used
    to alter the maximum penalty for a crime, rather than the
    mandatory minimum sentence as was the case in McMillan.
    To return to the Section 2254 standards, we must now
    decide whether Pennsylvania’s application of Section 9714
    was contrary to or involved an unreasonable application of the
    cases just described. We conclude that neither is the case.
    As to the first half of that inquiry, the answer is clear.
    None of those cases dealt with the precise issue of whether a
    presumption of the sort created by Section 9714 can be
    applied during sentencing. Hence we cannot conclude that
    the state’s application of such a presumption was “contrary
    to...clearly established Federal law.”
    Whether that presumption unreasonably applies any
    principle clearly established by Supreme Court precedents is a
    somewhat closer question, but one that we also answer in the
    negative. In addressing that question, we are mindful that we
    are not to decide whether we agree with the state court’s
    application of Supreme Court holdings, but rather “whether
    the state court’s application of clearly established federal law
    cannot conclude in light of McMillan and Almendarez-Torres that the
    state court’s decision in this case was “contrary to, or involved an
    unreasonable application of clearly established federal law.”
    15
    was objectively unreasonable” (Williams, 
    529 U.S. at 409
    )(emphasis added)). Even were we to conclude that the
    state court’s application of Supreme Court holdings was
    incorrect or erroneous, we would not be in a position to issue
    the writ of habeas corpus unless we were also to conclude that
    the application of clearly established Supreme Court doctrine
    was unreasonable (id. at 411).
    Both McMillan and Almendarez-Torres provide a
    reasonable basis of support for the position that a presumption
    that imposes a burden on a defendant may be constitutionally
    acceptable if it is triggered by the offender’s recidivism and if
    it applies only after the state has satisfied its burden to prove
    all facts necessary for conviction. Thus we cannot conclude
    that the state court’s decision to apply Section 9714 to
    Warren’s sentence was an objectively unreasonable
    application of clearly established federal law.5
    Finally, we note the obvious: Much has happened with
    respect to sentencing and sentencing factors in the years since
    Warren was imprisoned. Almendarez-Torres was just the first
    in a series of recent Supreme Court cases dealing with such
    issues that includes Apprendi v. New Jersey, 
    530 U.S. 466
    (2000) and has culminated recently with United States v.
    Booker, 543 U.S. __, 
    125 S.Ct. 738
     (2005). But we need not
    consider whether those new cases change the constitutional
    5
    It is worth recalling the precise nature of the presumption at
    play in Warren’s sentencing. Section 9714 did not establish a
    presumption as to the prior conviction itself -- to the contrary, the fact
    of the prior conviction was admitted by Warren as part of his plea
    agreement. Instead the presumption acted only once the recidivism
    was established. In the context of a sentencing regime that simply
    imposes a different sentence based on the fact of a prior conviction,
    Section 9714 actually gave the judge more discretion to impose the
    lower sentence. That makes the Section 9714 presumption quite
    different from any of the Supreme Court cases discussed above.
    16
    analysis just described, because we have held that those new
    holdings are not applicable retroactively to cases on collateral
    review (as to Apprendi, see United States v. Swinton, 
    333 F.3d 481
    , 491 (3d Cir. 2003); as to Booker, see Lloyd v.
    United States, 
    407 F.3d 608
    , 613-15 (3d Cir. 2005)).
    Conclusion
    Federal habeas relief is available under Section 2254
    only if a prisoner demonstrates that “he is in custody in
    violation of the Constitution or laws or treaties of the United
    States.” We granted Warren a certificate of appealability to
    review two potential claims along those lines, but our review
    leads us to conclude that neither claim satisfies Section
    2254’s requirements.
    Nothing in the federal Constitution compels a State to
    apply its criminal decisions retroactively, and we lack the
    authority to review the State’s own application of its
    retroactivity principles. In substantive terms, the application
    of a presumption against Warren that affected only the length
    of his sentence based on a prior conviction was neither
    contrary to nor an unreasonable application of the clearly
    established Supreme Court jurisprudence that existed at the
    time the sentence was imposed. For those reasons, the order
    of the District Court is AFFIRMED and Warren’s petition for
    a writ of habeas corpus is DENIED.
    17