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).

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)