June 23, 2009; see amended opinion filed July 22, 2009
Appeal from the United States District Court for the Central District of California. Philip S. Gutierrez, District Judge, Presiding. D.C. No. CV-06-03740-PSG.
The opinion of the court was delivered by: Graber, Circuit Judge
Argued and Submitted May 4, 2009 -- Pasadena, California.
Before: John T. Noonan, Diarmuid F. O'Scannlain, and Susan P. Graber, Circuit Judges.
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. Accordingly, the answer depends on what level of scrutiny we apply to the sentencing decision. When we review de novo, we make an independent determination of the scope of the prior conviction exception, using our normal interpretative methods. When our review is constrained by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), though, we cannot grant habeas relief unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). Thus, under AEDPA, even if this court has reached a particular conclusion about the scope of the prior conviction exception, our view may not be the only reasonable one; if the state court's interpretation is also reasonable, we must deny habeas relief.
Petitioner Harold Kessee was convicted of several crimes in California state court. The sentencing judge made factual findings that increased the statutory maximum penalty under California's determinate sentencing law. See generally Cunningham v. California, 549 U.S. 270 (2007) (discussing California's determinate sentencing law). On direct appeal, the California appellate court affirmed the sentence, holding that the sentencing judge's finding that Petitioner had committed crimes while on probation fell within the "prior conviction" exception.*fn1 After exhausting his state-court remedies, Petitioner filed a petition for writ of habeas corpus in federal district court. The district court granted a conditional writ, and the state timely appeals.
 The Supreme Court has held 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.' " Apprendi v. New Jersey, 530 U.S. 466, 476 (2000) (quoting Jones v. United States, 526 U.S. 227, 243 n.6 (1999)); see also Blakely v. Washington, 542 U.S. 296, 303 (2004) ("[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."); United States v. Booker, 543 U.S. 220, 221 (2005) (holding that the Federal Sentencing Guidelines violated the Sixth Amendment because, "as in Blakely, 'the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.' " (quoting Blakely, 542 U.S. at 305)). The Supreme Court announced the prior conviction exception in Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998), and discussed its scope to some extent in fractured opinions in Shepard v. United States, 544 U.S. 13 (2005). But the task of determining the precise contours of that exception has been left to the federal appellate courts.*fn2
 Consistently, we have provided a narrow interpretation of the "prior conviction" exception. See Butler, 528 F.3d at 644 ("[W]e have been hesitant to broaden the scope of the prior conviction exception . . . ."); Kortgaard, 425 F.3d 602, 610 (declining to "extend or broadly construe" the prior conviction exception); Tighe, 266 F.3d at 1194 (holding that the prior conviction exception "should remain a 'narrow exception' to Apprendi" (quoting Apprendi, 530 U.S. at 490)). Other courts have disagreed and have construed the prior conviction exception more broadly. See, e.g., Butler, 528 F.3d at 647 n.15 ("Some of our sister circuits have also taken a broader view of the Almendarez-Torres exception, permitting judicial factfinding as to facts that we have held do not come within the Almendarez-Torres exception."); Boyd v. Newland, 467 F.3d 1139, 1152 (9th Cir. 2006) (noting that some state courts and at least three sister circuits disagree with our narrow interpretation of the exception in Tighe). When we review de novo,*fn3 our own interpretation controls, of course. See generally Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc). For purposes of AEDPA review, however, a state court's determination that is consistent with many sister circuits' interpretations of Supreme Court precedent, even if inconsistent with our own view, is unlikely to be "contrary to, or involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1).
For example, in Tighe, 266 F.3d at 1194-95, we held on de novo review that "the 'prior conviction' exception does not include non-jury juvenile adjudications." Some years later, in Boyd, 467 F.3d at 1151-52, we addressed a habeas claim, under AEDPA standards, concerning a state court decision that increased the statutory maximum sentence because of a non-jury juvenile adjudication. We acknowledged our own interpretation in Tighe, but we also observed that the California courts and the Third, Eighth, and Eleventh Circuits all expressly disagreed with our interpretation. Id. We concluded:
Although we are not suggesting that Tighe was incorrectly decided, as some of these varying interpretations of Apprendi suggest, the opinion does not represent clearly established federal law "as determined by the Supreme Court of the United States."
28 U.S.C. § 2254(d)(1). In general, Ninth Circuit precedent remains persuasive authority in determining what is clearly established federal law. See Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999) (stating that Ninth Circuit case law may be used to help determine clearly established federal law). But, in the face of authority that is directly contrary to Tighe, and in the absence of explicit direction from the Supreme Court, we cannot hold that the California courts' use of Petitioner's ...