The Supreme Court today "dismissed as improvidently granted" the case of Roper v. Weaver, No. 06-313. The slip opinion is here.

The case involved prosecutor arguments in the penalty phase of a capital case that the defendant claimed were improper. The Missouri Supreme Court disagreed, but the Eighth Circuit agreed. The question before the Supreme Court was whether the Eighth had properly applied the deference standard of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d). CJLF's brief, by Prof. Barry Latzer of the John Jay College of Criminal Justice, is here.

The habeas petitioner, William Weaver, contended that AEDPA never should have applied to his case. He filed a federal petition pre-AEDPA, but the district court dismissed it as unexhausted because a certiorari petition was pending to the U.S. Supreme Court from the state collateral review. That exhaustion ruling was clearly wrong under law going back decades. Certiorari to SCOTUS is not part of exhaustion of state remedies. The Eighth Circuit declined to interfere, and Weaver did not seek Supreme Court review. He refiled the petition after denial of certiorari in the state collateral case and after enactment of AEDPA.

Meanwhile, back at the ranch, two other defendants prosecuted by the same prosecutor making the same argument got relief in pre-AEDPA petitions. The difference in treatment of these cases is enough to convince five Justices to drop the case without resolving any questions of law. The Court did not decide whether AEDPA should have applied to the refiled petition. The Court did not decide whether the Eighth Circuit correctly applied AEDPA. The Court did not decide whether the arguments were actually improper. The only decision is that, in the quirky and unlikely to be repeated circumstances of this case, the Supreme Court will not interfere and Weaver gets a new sentencing hearing.

Chief Justice Roberts concurs in the drop-kick but not in the stated reasons. Justice Scalia dissents, joined by Justices Thomas and Alito:

A postscript is warranted in light of the unusual circumstances in which we dispose of this case. The greatest harm done by today'’s cancellation is not to the State of Missouri, which will have to retry this murder case almost two decades after the original trial——though that is harm enough. The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuit'’s grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained away——as perhaps the Court’'s own opinion can——as the product of law-distorting compassion for a defendant wronged by a District Court'’s 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 Court'’s failure to reverse the Eighth Circuit's decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth Circuit’'s decision just what it did unto AEDPA: ignore it.