Whether a state constitutional test that is less protective than the federal constitutional test fails to 'adjudicate[ ... ] the merits' of the federal constitutional claim under 28 U.S.C. 2254(d)

QUESTIONS PRESENTED Mr. Rook filed a federal habeas petition arguing that his life-without-parole sentence for a third-strike conviction of vehicular assault (driving in a reckless manner and causing substantial bodily injury) was grossly disproportionate in violation of the controlling plurality of Harmelin v. Michigan, 501 U.S. 957 (1991) (Kennedy, J., concurring). The last reasoned state-court decision in his case had held that the allegedly more protective state constitution was not violated, and therefore the federal constitution was not violated, but did no independent analysis of the Eighth Amendment and neglected to perform the Harmelin test. The questions presented are: 1) Whether a demonstration that a state constitutional test is less protective than the federal constitutional test means that an adjudication of the state constitutional test fails to “adjudicate[ ... ] the merits” of the federal constitutional claim under 28 U.S.C. 2254(d), and 2) Whether the test set forth in Justice Kennedy’s concurrence in Harmelin v. Michigan is controlling Supreme Court precedent and thus “clearly established Federal law,” under § 2254(d), or if instead, the test was overruled by Lockyer v. Andrade’s reference to the general “gross disproportionality principle, the precise contours of which are unclear, applicable only in the ‘exceedingly rare’ and ‘extreme’ case.” Lockyer v. Andrade, 538 U.S. 63, 72-73 (2003). i