DON ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER, PETITIONER
v. WILLIAM WEAVER
on writ of certiorari to the united states court of appeals for the eighth circuit
Chief Justice Roberts, concurring in the result.
While I do not agree with all the reasons given in the per curiam for the discretionary decision to dismiss the writ as improvidently granted in this case, I do agree with that disposition.
DON ROPER, SUPERINTENDENT, POTOSI
CORRECTIONAL CENTER, PETITIONER
v. WILLIAM WEAVER
on writ of certiorari to the united states court ofappeals for the eighth circuit
Justice Scalia, with whom Justice Thomas and Justice Alito join, dissenting.
The Eighth Circuit held in this case that the Missouri Supreme Court had unreasonably applied clearly established precedent of this Court in concluding that certain statements made by the prosecutor during the penalty phase of respondents capital trial did not rise to the level of a due process violation. Weaver v. Bowersox, 438 F. 3d 832, 839842 (2006). As the Court says, ante, at 1, we granted certiorari to decide whether this holding comported with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1). We received briefing, and heard an hours argument, on that question. Yet now the Court declines to answer it, dismissing the writ as improvidently granted.
The reason is that the Court has become aware, ante, at 1, that respondents post-AEDPA habeas petition was filed only because the District Court had erroneously dismissed an earlier petition filed prior to AEDPAs effective date, ante, at 3. Believing that respondent is virtually identically situated to two other litigants whose federal habeas petitions were not governed by AEDPA, and seeking to avoid treat[ing the three] in a needlessly disparate manner … simply because the District Court erroneously dismissed respondents pre-AEDPA petition, the Court has decided to let stand the Eighth Circuits flagrant misapplication of AEDPA, whether or not (and without deciding whether) AEDPA governs this case. Ante, at 4.
I fully agree with the Court that the District Court erred in dismissing respondents pre-AEDPA petition, but that seems to me no justification for aborting this argued case. The District Courts previous error does not affect the legal conclusion that AEDPA applies to this new petition. And once it is admitted that AEDPA governs, the District Courts error should in no way alter our prior determination that the Eighth Circuits application of AEDPAdeserves our scrutiny. I discuss these two points insuccession.
The Court provides nolegal argument to support its assertion that respondent has a colorabl[e] claim, ante, at 4, that the prior erroneous dismissal renders AEDPA inapplicable to this case. Nor does respondent. See Brief for Respondent 39, n. 44. I am aware of no authority supporting the proposition that respondent is legally or equitably entitled to evade the collateral consequences of the District Courts error.
To begin with, any resort to equity would founder on respondents failure to exhaust his appeals of the District Courts erroneous decision. See ante, at 3, n. The Court is untroubled by respondents lack of diligence because, it says, further appellate review would almost certainly have been futile. Ibid. The Court does not explain the basis for this pessimistic assessment, but the reason seems to be its belief that the District Courts error was not clear until our recent decision in Lawrence v. Florida, 549 U. S. ____ (2007). See ante, at 3 (describing Lawrence as clarif[ying] the exhaustion rule).
This seems to me quite wrong. The District Courts error was as apparent in 1996 as it was in 1966. In Fay v. Noia, 372 U. S. 391, 435438 (1963) , we announced in no uncertain terms that a federal habeas petitioner need not seek certiorari in order to exhaust state-court remedies. [N]o less an authority than Hart & Wechslers The Federal Courts and the Federal System, Massachusetts v. EPA, 549 U. S. ___, ___ (2007) (slip op., at 17, n. 17), has long understood Noia to stand for that proposition. See P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart & Wechslers The Federal Courts and the Federal System 1555 (3d ed. 1988); id., at 1446 (4th ed. 1996); id., at 1391 (5th ed. 2003). Indeed, Lawrences clarifi[cation] consisted of nothing more than citing the same old pages in Noia. See Lawrence, supra, at ______ (slip op., at 45). It logically follows from Noia no less inescapably than from Lawrence that final disposition of a pending certiorari petition is also unnecessary to exhaust state-courtremedies.
That the District Court had erred was no mystery to respondent in 1996. He correctly asked the District Court to reconsider its decision to dismiss his habeas action, and instead to stay it pending disposition of his petition for certiorari (which is the proper procedural way to handle such duplicative filings). See App. to Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 811 (hereinafter NACDL Brief). And he then filed a notice of appeal and unsuccessfully sought a certificate of appealability. See id., at 17. Respondent (who theretofore had shown himself to be a highly capable pro se litigant, undoubtedly aware of the availability of en banc and certiorari review) simply gave up too early. There is no more reason in this case than in any other to excuse the failure to make use of all available means of review. Far from thinking that a petition for certiorari would almost certainly have been futile, ante, at 3, n., I think it would almost certainly have been successful. We give special attention to capital cases (as todays delicate disposition shows), and since the District Courts denial of a certificate of appealability occurred on August 1, 1996, see App. to NACDL Brief 1, more than three months after AEDPAs effective date, see Woodford v. Garceau, 538 U. S. 202, 204 (2003) , it would have been obvious that our refusal to correct the District Courts clear error would subject this defendants renewed request for federal habeas relief to AEDPAs restrictions.
More fundamentally, however, even were the Courts conjecture correct that diligence on respondents part would not have been rewarded, neither AEDPA nor any principle of law would entitle him to relief from the collateral consequences of an uncorrected judicial error. We held in Daniels v. United States, 532 U. S. 374, 382 (2001) that [i]f … a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse. (Emphasis added.) If a defendant is subject to additional jail time because a prior erroneous conviction went unreversed, surely respondent cannot complain about the fact that the District Courts prior uncorrected error has caused this habeas petition to be subject to AEDPAs entirely reasonable restrictions.* *
There having been eliminated the possibility that AEDPA is inapplicable to this case (and hence that the question on which we granted certiorari and heard argument is not presented) what possible justification remains for canceling our grant of certiorari after full briefing and argument? There disappears, along with the claim of AEDPA inapplicability, any substance to the Courts contention that respondent is virtually identically situated to the two other litigants with similar claims, and that he is being treated differently simply because the District Court erroneously dismissed [his] pre-AEDPA petition. Ante, at 4. No. He is being treated differently because he, unlike them, seeks federal habeas relief by means of a petition filed after AEDPAs effective date. Is what happened here any less rational, any less fair, a basis for differential treatment than the random fact that one petitioners habeas action was filed a day before AEDPAs effective date, and another petitioners could not be filed until one day after? Would the Court entertain the thought that if those two petitions involved the same sort of closing argument by the same prosecutor, the second of them would have to be exempted from AEDPA? If anything, the differential treatment is more justified here, since the later filing was not randomly determined, but was likely the consequence of respondents failure to exhaust his appeals.
The Court seems to be affected by a vague and discomforting feeling that things are different now from what they were when we granted certiorari. They are so only in the respect that we now know, as we did not then, that respondents earlier petition was wrongfully dismissed. That fact has relevance neither to the law governing this case (as discussed in Part I, supra) nor to any equities that might justify our bringing to naught the parties briefing and arguments, and the Justices deliberations, on the question for which this petition was granted. But what makes todays wasteful action particularly perverse is that it is the fault of respondent that we did not know of the wrongful dismissal earlier. Before we granted plenary review, respondent had never argued that AEDPA should not apply because of the District Courts error. He made no such claim either time he was before the Eighth Circuit. See Brief for Appellee in Bowersox v. Weaver, No. 993462, pp. xviixix; Brief for Appellee/Cross-Appellant in Bowersox v. Weaver, No. 032880 et al., p. 7. And, more significantly, he remained completely silent in his brief in opposition, despite his obligation to raise the issue under this Courts Rule 15.2. Indeed, even in respondents merits brief, his argument (if it can be called that) consists of three sentences explaining the procedural history followed by a conclusory assertion, all buried in footnote 44 on page 39.
Respondents delayed invocation of this issue has not only not been sanctioned; it has been rewarded. Had respondent raised his specious claim of AEDPA inapplicability in a timely manner, petitioner would have had the opportunity to blow it out of the water. Whether by way of calculus or through dumb luck, respondents tardiness has succeeded in confounding the Court. We promulgated Rule 15.2 precisely to prohibit such sandbaggingand to avoid the ill effects that minimal briefing has on the quality of our decisionmaking, as perfectly demonstrated by this case. Respondent and his counsel should not profit from their flouting of this Courts Rules.
I would thus answer the question on which we granted certiorari and received full briefing and argument. Because plenary review has convinced me beyond doubt that the Missouri Supreme Court did not unreasonably apply clearly established precedent of this Court, I would reverse the judgment of the Eighth Circuit.
A postscript is warranted in light of the unusual circumstances in which we dispose of this case. The greatest harm done by todays cancellation is not to the State of Missouri, which will have to retry this murder case almost two decades after the original trialthough that is harm enough. The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuits grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained awayas perhaps the Courts own opinion canas the product of law-distorting compassion for a defendant wronged by a District Courts erroneous action. As noted earlier, the Eighth Circuit was not informed of that erroneous action. It presumably really believes that this is the way AEDPA should be applied.) Other courts should be warned that this Courts failure to reverse the Eighth Circuits decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth Circuits decision just what it did unto AEDPA: ignore it.
For the foregoing reasons, I respectfully dissent.
** Of course, even if some novel argument for the inapplicability of AEDPA exists, respondent and the Court have not explained why the claim has not been waived, given that this issue was raised for the first time in respondents merits brief in this Court. See infra, at 56.
* Of course, even if some novel argument for the inapplicability of AEDPA exists, respondent and the Court have not explained why the claim has not been waived, given that this issue was raised for the first time in respondents merits brief in this Court. See infra, at 56.
DON ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER, PETITIONER
v. WILLIAM WEAVER
on writ of certiorari to the united states court of appeals for the eighth circuit
We granted certiorari in this case, 549 U. S. ___ (2006), to decide whether the Court of Appeals had exceeded its authority under 28 U. S. C. §2254(d)(1) by setting aside a capital sentence on the ground that the prosecutors closing statement was unfairly inflammatory. Weaver v. Bowersox, 438 F. 3d 832, 841 (CA8 2006). Our primary concern was whether the Court of Appeals application of the more stringent standard of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996, (AEDPA), 110Stat. 1214, was consistent with our interpretation of that statute. Cf. Carey v. Musladin, 549 U. S. ___ (2006). We are now aware of circumstances that persuade us that dismissal of the writ is the appropriate manner in which to dispose of this case.
The argument made by the prosecutor in this case was essentially the same as the argument that he made in two other casesone of which involved respondents codefendant. See Shurn v. Delo, 177 F. 3d 662, 666 (CA8 1999); Newlon v. Armontrout, 693 F. Supp. 799 (WD Mo. 1988), affd, 885 F. 2d 1328 (CA8 1989). In each of those cases, the defendant received a death sentence. Also in each case, the defendant filed a petition seeking federal habeas relief before AEDPAs effective date. Federal habeas relief was granted in all three cases. The State does not question the propriety of relief in the other two cases because it was clear at the time, as it is now, that AEDPA did not apply to either of them.
Respondent argues, for the following reasons, that AEDPA should not govern his case either. Like the defendants in Newlon and Shurn, respondent filed his federal habeas petition before the effective date of AEDPA. Instead of considering respondents claims, however, the District Court sua sponte stayed the habeas proceedings, noting that respondent had indicated his intention to file a petition for writ of certiorari seeking this Courts review of the state courts denial of postconviction relief. Though the District Court recognized that respondent was not required to seek certiorari from this Court, it concluded that, if a state prisoner chooses to pursue writ of certiorari, he must first exhaust that remedy before filing a federal habeas corpus petition. App. to Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 15. Thus, the District Court put respondent to a choice: He could forgo filing a petition for certiorari, or his habeas petition would be dismissed.
Respondent moved for reconsideration and for the appointment of counsel. The District Court denied both motions, reiterating its view that if respondent sought certiorari, his federal habeas petition would be premature. When respondent notified the District Court that a petition for certiorari had been filed, the court made good on its promise: It dismissed respondents habeas petition without prejudice to his refiling following exhaustion of his state proceedings. Id., at 13. Though respondent had filed his habeas petition before AEDPA took effect, the District Court dismissed his petition after the statute was in force.
Still without an attorney, respondent requested a certificate of appealability from the District Court. The court denied the request, opining that reasonable jurists could not disagree with the dismissal of respondents petition. Id., at 56. Respondent also filed a notice of appeal, which the Court of Appeals construed as a request for a certificate of appealability and rejected.* *
Respondent refiled his habeas petition after this Court denied review of his state postconviction proceedings. The Eighth Circuit eventually concluded that, because respondents petition was filed after AEDPAs effective date, his claims must be evaluated under that statutes strict standard of review. See Weaver v. Bowersox, 241 F. 3d 1024, 1029 (2001).
Our recent decision in Lawrence v. Florida, 549 U. S. ___ (2007), conclusively establishes that the District Court was wrong to conclude that, if respondent chose to seek certiorari, he had to exhaust that remedy before filing a federal habeas petition. Lawrence clarified that [s]tate review ends when the state courts have finally resolved an application for state postconviction reliefeven if a prisoner files a certiorari petition. Id., at ___ (slip op., at 4); see also id., at ______ (slip op., at 45) ([W]e have said that state prisoners need not petition for certiorari to exhaust state remedies (citing Fay v. Noia, 372 U. S. 391, 435438 (1963) )). Thus, respondents habeas petition, which was fully exhausted when filed, did not become unexhausted upon his decision to seek certiorari. Because the petition was not premature, the District Court had no cause to dismiss it.
Whether this unusual procedural history leads to the conclusion, as respondent colorably contends, that the AEDPA standard is simply inapplicable to this case, is a question we find unnecessary to resolve. Regardless of the answer to that question, we find it appropriate to exercise our discretion to prevent these three virtually identically situated litigants from being treated in a needlessly disparate manner, simply because the District Court erroneously dismissed respondents pre-AEDPA petition.
Accordingly, the writ of certiorari is dismissed as improvidently granted.
It is so ordered.
** Respondent did not seek rehearing or rehearing en banc in the Court of Appeals, nor did he file a petition for writ of certiorari from the denial of the certificate of appealability. Pursuit of either would almost certainly have been futile.
* Respondent did not seek rehearing or rehearing en banc in the Court of Appeals, nor did he file a petition for writ of certiorari from the denial of the certificate of appealability. Pursuit of either would almost certainly have been futile.