Today’s Opinion in Roper v. Weaver

The following summary is by Gia Kim, an attorney at Akin Gump who, along with Michael Small of Akin Gump and Pamela Harris of the National Association of Criminal Defense Lawyers amicus committee, filed an amicus brief on behalf of NACDL supporting respondent William Weaver.

By a vote of six to three, the Supreme Court today dismissed as improvidently granted the writ of certiorari in No. 06-313, Roper v. Weaver. The Court had granted certiorari to determine whether the Eighth Circuit had exceeded its authority under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in setting aside William Weavers death sentence because the prosecutors penalty phase closing argument was unfairly inflammatory. The dismissal means that the Eighth Circuits grant of habeas relief to Weaver, a Missouri prisoner, stands.

(For more background on the case, you can read Steven Sigers preview of the case here, and his summary of the oral argument here.)

The five-member per curiam (Justices Breyer, Ginsburg, Kennedy, Souter, and Stevens) explained that they had become aware of circumstances warranting dismissal. These circumstances concerned the disposition of Weavers first federal habeas petition, which was filed before AEDPAs effective date. In this petition, Weaver stated that he planned to file a petition for writ of certiorari seeking Supreme Court review of the state courts denial of postconviction relief. Although the district court recognized that Weavers claims were properly exhausted even if Weaver chose not to pursue a writ of certiorari, it nevertheless indicated that it would not allow Weavers habeas petition to remain pending if Weaver sought Supreme Court review because such a petition would be premature. As the majority saw it, the district court thus put Weaver to a choice: He could forgo filing a petition for certiorari, or his habeas petition would be dismissed.

Weaver moved for reconsideration and appointment of counsel, and the district court denied both motions. Thus, once Weaver filed his petition for certiorari, the district court dismissed the pre-AEDPA habeas petition without prejudice to refiling. By then, however, AEDPA had taken effect. Both the district court and the Eighth Circuit denied Weavers requests for a certificate of appealability. After the Supreme Court denied Weavers petition for a writ of certiorari, Weaver refiled his habeas petition, which was now subject to AEDPAs strict standard of review.

This unusual procedural history took on increased significance in light of the Courts February 2007 decision in Lawrence v. Florida. In Lawrence, the Court unequivocally held that [s]tate review ends when the state courts have finally resolved an application for state postconviction relief, even if a petition for certiorari is pending. Thus, the Roper majority reasoned, Lawrence conclusively established that the district court erred in dismissing Weavers pre-AEDPA petition, which did not become unexhausted upon his decision to seek certiorari.

Two additional circumstances evidently contributed to the majoritys discretionary decision to dismiss the writ. First, the application of AEDPA would likely be outcome-determinative. The Court observed that the closing argument in Roper was essentially the same as the arguments made by the same prosecutor in two other capital cases one of which involved Weavers co-defendant. Applying the pre-AEDPA standard of review, the Eighth Circuit granted federal habeas relief in both of those cases. Second, the Court noted that Weaver had been pro se both when he filed his pre-AEDPA petition, and when that petition was erroneously dismissed.

In view of this unusual procedural history, the Court declined to address whether AEDPA was simply inapplicable to Weavers case. Rather, it chose to exercise its discretion to prevent these three virtually identically situated litigants from being treated in a needlessly disparate manner simply because of the district courts error.

Justice Roberts concurred in the dismissal, although he indicated that he did not agree with all the reasons given in the per curiam.

Justice Scalia, joined by Justices Thomas and Alito, dissented. While the dissent agreed that the district court had erred in dismissing Weavers pre-AEDPA petition, it faulted the majority for relying on this fact to dismiss the case. Justice Scalia argued that the district courts error was clear long before Lawrence, and that Weavers failure to exhaust his appeals of the erroneous dismissal therefore precluded the Court from granting him equitable relief. Further, Justice Scalia argued that, in any event, no legal principle would entitle Weaver to relief from the collateral consequences of an uncorrected judicial error. In Justice Scalias view, Weaver was wrongfully rewarded for failing to raise the issue of the prior erroneous dismissal until the Supreme Court merits briefing stage. Characterizing the Courts dismissal as a rare manifestation of judicial clemency unrestrained by law, Justice Scalia concluded by cautioning other courts against following the Eighth Circuits application of AEDPA in the decision previously under review.