                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                           File Name: 04a0408p.06

                         UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                               X
                                       Petitioner-Appellant, -
 FELIX ERNESTO SOSA,
                                                                -
                                                                -
                                                                -
                                                                    No. 03-1195
             v.
                                                                ,
                                                                 >
 KURT JONES, Warden,                                            -
                                      Respondent-Appellee. -
                                                               N
                               Appeal from the United States District Court
                              for the Eastern District of Michigan at Detroit.
                             No. 02-71797—Arthur J. Tarnow, District Judge.
                               Argued and Submitted: September 24, 2004
                                 Decided and Filed: November 24, 2004
                    Before: SILER, BATCHELDER, and ROGERS, Circuit Judges.
                                           _________________
                                                COUNSEL
ARGUED: J. Philip Calabrese, SQUIRE, SANDERS & DEMPSEY, Cleveland, Ohio, for Appellant.
ON BRIEF: J. Philip Calabrese, Howard J.C. Nicols, SQUIRE, SANDERS & DEMPSEY, Cleveland,
Ohio, for Appellant. Debra M. Gagliardi, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan,
for Appellee. Felix Ernesto Sosa, Carson City, Michigan, pro se.
                                           _________________
                                               OPINION
                                           _________________
       ROGERS, Circuit Judge. Felix Ernesto Sosa appeals the denial of his petition for a writ of habeas
corpus, seeking relief from his 1990 conviction for conspiracy to deliver over 650 grams of cocaine.
Mr. Sosa argues that he was denied due process because the police entrapped him by pressuring his co-
conspirator and prolonging the drug sting in order to bring the amount of cocaine sold to more than 650
grams, so that the offense would carry a mandatory sentence of life without the possibility of parole under
Michigan law. The Michigan courts rejected Mr. Sosa’s entrapment claims. Because the Supreme Court
has not yet recognized a constitutionally required entrapment defense, the Michigan Court of Appeals
reached a conclusion that was not contrary to, nor an unreasonable application of, clearly established federal
law. We therefore affirm the district court’s denial of the habeas corpus petition.
       Between March 19 and April 4, 1990, Felix Sosa made five controlled sales of cocaine to Officer
Daniel Hiltz through Antonio Velez. The first four sales were for relatively small amounts of cocaine,
ranging from ½ ounce to 2 ounces (14 to 57 grams). Officer Hiltz began requesting larger quantities of
cocaine from Mr. Velez and, after several requests and some pressure from Mr. Velez, Mr. Sosa agreed to

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No. 03-1195                 Sosa v. Jones                                                                              Page 2


arrange a fifth sale of 20 ounces (577 grams). Officer Hiltz requested an additional five ounces (140 grams)
just prior to the sale, which Mr. Sosa agreed to procure for Mr. Velez. Mr. Sosa acquired approximately
26 ounces (711 grams) of cocaine from various sources in and around Detroit and completed the controlled
sale at Mr. Velez’s home. Both were arrested shortly thereafter.
        On advice of counsel, Mr. Sosa pleaded guilty to conspiracy to deliver more than 650 grams of
cocaine, a crime that carried a mandatory life sentence without the possibility of parole. Mr. Sosa attempted
to withdraw his guilty plea, claiming entrapment, but the trial court found no basis for withdrawal of his plea
and sentenced him to the mandatory penalty. On appeal, Mr. Sosa sought an entrapment hearing, which was
eventually ordered by the Michigan Court of Appeals. At the four-day entrapment hearing, Mr. Sosa
presented two different entrapment theories. First, Mr. Sosa raised a traditional entrapment defense under
Michigan law. Second, he presented a variation of the defense known as “sentencing entrapment,” which
is based on an allegation that the police sought to increase the order of magnitude of the crime that the
defendant was predisposed to commit. Mr. Sosa attempted to present an ineffective assistance of counsel
argument at the hearing, but he had already waived the issue because he did not raise ineffective assistance
of counsel in his first direct1 appeal to the Michigan Court of Appeals, the appeal that subsequently resulted
in the entrapment hearing.
        Based on the testimony received at the entrapment hearing, the trial court found that Mr. Sosa had
not been entrapped under Michigan law. The trial court did express dismay at the outcome, noting that Mr.
Sosa probably would not have been dealing in the amounts at issue absent Mr. Velez’s pressure and that Mr.
Sosa was not the major drug trafficker the statute was aimed at punishing. However, the trial court was
bound by Michigan’s formulation of the entrapment defense, which focuses almost solely on the conduct
of the police. See People v. Juillet, 475 N.W.2d 786, 792-93 (Mich. 1991). Mr. Sosa appealed, challenging
the determination that he had not been entrapped as a matter of Michigan law and also raising a claim that
he was denied due process based on the conduct of the police. The Michigan Court of Appeals affirmed
Mr. Sosa’s conviction. Mr. Sosa sought leave to appeal to the Michigan Supreme Court, which was denied.
         Mr. Sosa then petitioned for a writ of habeas corpus in the U.S. District Court for the Eastern
District of Michigan, claiming that he was denied due process based on the conduct of the police. The
district court first found that entrapment was not a constitutional defense and thus the issue of entrapment
could not form a basis for habeas relief. The district court then found that, assuming that a “due process”
claim based on “outrageous” government conduct was cognizable, the police conduct at issue was not so
outrageous as to warrant relief, and denied the writ. This appeal followed.
        Appellate courts, in reviewing federal habeas corpus proceedings, examine the district court’s legal
conclusions under a de novo standard and its factual findings under a clearly erroneous standard. Caver v.
Straub, 349 F.3d 340, 345 (6th Cir. 2003) (citing Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir. 1999)).
Mr. Sosa’s petition is governed by 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Pub. L. No. 104-132, 110 Stat. 1214 (1996) (relevant portions
codified as amended at 28 U.S.C. § 2254 (2000)); see Williams v. Taylor, 529 U.S. 362, 402 (2000). Under
AEDPA, a writ of habeas corpus “may issue only if ... the state-court adjudication resulted in a decision that
either (1) ‘was contrary to ... clearly established Federal law, as determined by the Supreme Court of the
United States,’ or (2) ‘involved an unreasonable application of ... clearly established Federal law, as
determined by the Supreme Court of the United States.’” 529 U.S. at 412 (quoting 28 U.S.C. § 2254(d)(1)
(2000)).
       Mr. Sosa first argues that the formulation of the entrapment defense set out in the seminal Supreme
Court decision of Sorrells v. United States is grounded in due process and that the failure of the prosecution


    1
      Mr. Sosa’s trial attorney testified at the entrapment hearing that he advised Mr. Sosa to plead guilty to a mandatory non-
parolable life sentence as part of a strategy to give Mr. Sosa an ineffective assistance of counsel claim on appeal.
No. 03-1195            Sosa v. Jones                                                                      Page 3


to prove beyond a reasonable doubt that Mr. Sosa was predisposed to sell large amounts of cocaine
amounted to a deprivation of due process. 287 U.S. 435 (1932). Because the Supreme Court precedent that
formulated the defense of entrapment does not rely on due process, and the related concept of sentencing
entrapment has never been accepted by the Supreme Court, Mr. Sosa’s petition for a writ of habeas corpus
must be denied.
        There are two formulations of the defense of entrapment, both of which originate with the Supreme
Court’s decision in Sorrells v. United States, 287 U.S. 435 (1932). The “subjective” theory of entrapment
focuses on the predisposition of the defendant and is the formulation of the defense adopted by the federal
courts. Id. at 451; see United States v. Tucker, 28 F.3d 1420, 1422-23 (1994). A defendant may raise the
defense of entrapment at trial, and the government must prove beyond a reasonable doubt that the defendant
was predisposed to commit the crime. See Jacobsen v. United States, 503 U.S. 540, 548-49 (1992).
        The “objective” theory of entrapment focuses on the conduct of the government, rather than
individual predisposition, and has been consistently raised as an alternative formulation of the entrapment
defense in concurring or dissenting opinions by Supreme Court justices. See, e.g., United States v. Russell,
411 U.S. 423, 439-50 (1973) (Stewart, J. dissenting). Under this theory, entrapment occurs when the
government induces or instigates the commission of a crime by one not ready and willing to commit it,
rather than merely providing the opportunity to commit a crime. Id. at 445. Michigan has adopted the
objective theory of entrapment. See People v. Juillet, 475 N.W.2d 786, 792-93 (Mich. 1991).
       Mr. Sosa cites several references in Sorrells v. United States to “public policy” and the “essential
demands of justice” to support the proposition that the federal entrapment defense is rooted in due process.
See 287 U.S. at 446, 448, 451. This interpretation of Sorrells is contradicted by the express reasoning of
the Supreme Court in Sorrells, and by the subsequent decision of the Court in United States v. Russell, 411
U.S. 423 (1973).
        A close reading of Sorrells reveals that statutory interpretation, not the Constitution of the United
States, was the theoretical basis for the entrapment defense. The Court in Sorrells stated:
       We are unable to conclude that it was the intention of the Congress in enacting this statute
       that its processes of detection and enforcement should be abused by the instigation by
       government officials of an act on the part of persons otherwise innocent in order to lure them
       to its commission and to punish them. We are not forced by the letter to do violence to the
       spirit and purpose of the statute. This, we think, has been the underlying and controlling
       thought in the suggestions in judicial opinions that the government in such a case is estopped
       to prosecute or that the courts should bar the prosecution.
287 U.S. at 448. The Court further concluded:
       Fundamentally, the question is whether the defense, if the facts bear it out, takes the case out
       of the purview of the statute because it cannot be supposed that the Congress intended that
       the letter of its enactment should be used to support such a gross perversion of its purpose.
Id. at 452. The fundamental root of the defense of entrapment then, in the view of the Supreme Court in
Sorrells, is that Congress could not have intended its statutes to encompass criminal acts instigated by
overzealous law enforcement agents absent preexisting criminality. The formulation of the entrapment
defense based on the predisposition of the defendant which originated in Sorrells is therefore not based on
due process, but rather on statutory interpretation. Indeed, the Supreme Court appeared explicitly to eschew
any power to acquit beyond its power to interpret the statute:
       Where courts of equity refuse equitable relief because complainants come with unclean
       hands, they are administering the principles of equitable jurisprudence governing equitable
No. 03-1195            Sosa v. Jones                                                                      Page 4


       rights. But in a criminal prosecution, the statute defining the offense is necessarily the law
       of the case.
               To construe statutes so as to avoid absurd or glaringly unjust results, foreign to the
       legislative purpose, is, as we have seen, a traditional and appropriate function of the courts.
       Judicial nullification of statutes, admittedly valid and applicable, has, happily, no place in
       our system. The Congress by legislation can always, if it desires, alter the effect of judicial
       construction of statutes. We conceive it to be our duty to construe the statute here in question
       reasonably, and we hold that it is beyond our prerogative to give the statute an unreasonable
       construction, confessedly contrary to public policy, and then to decline to enforce it.
287 U.S. at 450.
        Mr. Sosa’s argument that Sorrells grounded the subjective theory of entrapment in due process is
further undermined by the Supreme Court’s decision in United States v. Russell, 411 U.S. 423, 428-39
(1973). In Russell, the petitioner argued that the defense of entrapment should rest on constitutional
grounds. The Court was urged to adopt a constitutional rule based on due process that would preclude
prosecution if the government agents became too involved in the commission of the crime. Id. at 430. The
Court declined the opportunity, but left open the possibility that government conduct could be so outrageous
that due process would bar prosecution, giving rise to Mr. Sosa’s second argument, discussed in detail
below. Id. at 431-32. Alternatively, the Court declined to extend the “non-constitutional” defense of
entrapment to include factors beyond the predisposition of the defendant as set out in Sorrells and Sherman
v. United States, 356 U.S. 369 (1958). Russell, 411 U.S. at 433-35. In doing so, the Court stated that the
defense of entrapment is not of a “constitutional dimension” and that Congress could address itself to a
substantive definition of the defense of entrapment if it so chose. Id. at 433. The discussion of entrapment
by the majority in Russell clearly demonstrates that the defense of entrapment is not based on due process.
        Mr. Sosa responds to Russell by arguing the statements regarding the non-constitutional nature of
the subjective theory of entrapment are dicta. The distinction between a constitutional theory of entrapment
based on due process and a subjective entrapment defense based on implied congressional intent appears,
however, to have been pivotal to the decision in Russell. Even if it can be characterized as dictum, however,
the considered dictum of five Supreme Court justices thoroughly undermines the possibility that state
application of the entrapment defense is required by “clearly established” Supreme Court law.
        Moreover, a finding that the subjective theory of entrapment is in fact based on due process would,
standing alone, still not be sufficient to grant Mr. Sosa’s petition. In addition, the theory of “sentencing
entrapment” would have to be recognized and applied in this case. The concept of sentencing entrapment
is an offshoot of the subjective theory of entrapment, mainly applied in narcotics cases under the federal
sentencing guidelines. Under this theory, “[s]entencing entrapment occurs where outrageous government
conduct overcomes the will of a defendant predisposed to deal only in small quantities of drugs, for the
purpose of increasing the amount of drugs and the resulting sentence imposed against that defendant.”
United States v. Williams, 109 F.3d 502, 512 (8th Cir. 1997) (citations and internal quotation marks
omitted). Mr. Sosa has pointed to no Supreme Court precedent that “clearly establishes” a federal
prohibition of sentencing entrapment.
        Mr. Sosa argues, in the alternative, that the outrageous conduct of the state police deprived him of
due process. While the majority in Russell reiterated the subjective theory of entrapment, the opinion also
introduced the possibility of a certain class of cases where government conduct during an investigation
could be so egregious as to violate due process. Russell, 411 U.S. at 431-32 (“While we may some day be
presented with a situation in which the conduct of law enforcement agents is so outrageous that due process
principles would absolutely bar the government from invoking judicial processes to obtain a conviction ...
the instant case is distinctly not of that breed.”); see also Hampton v. United States, 425 U.S. 484, 491-95
No. 03-1195                Sosa v. Jones                                                                             Page 5


(1976) (Powell, J. concurring).2 Even assuming the “due process” defense is clearly established by Supreme
Court precedent, which does not appear to be the case, the Michigan Court of Appeals reasonably concluded
the behavior of the police did not fall within the narrow class of cases contemplated by Russell. 411 U.S.
at 431-32; see United States v. Tucker, 28 F.3d 1420 (6th Cir. 1994).
       Mr. Sosa’s case appears unfortunate. Michigan has since amended the statute that Mr. Sosa was
convicted under such that he would not face a mandatory life sentence if arrested today. His co-conspirator
won a new trial, was re-sentenced, and was recently released on parole. However, Mr. Sosa has not
presented a legal argument that satisfies the standard of AEDPA.
         AFFIRMED.




    2
      A plurality of the Supreme Court sought to distance itself from this statement shortly thereafter. See Hampton, 425 U.S.
at 488-91(plurality opinion).
