Cite as: 554 U. S. ____ (2008) 1 

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

TWAN STEPHENSON v. UNITED STATES 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
 

No. 07–9267. Decided June 23, 2008 

The motion of petitioner for leave to proceed in forma 

pauperis and the petition for a writ of certiorari are

granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the

Seventh Circuit for further consideration in light of the

position asserted by the Solicitor General in his brief for 

the United States filed May 12, 2008. 

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and 

JUSTICE THOMAS join, dissenting. 

Petitioner pleaded guilty to distributing crack cocaine.

He waived “‘all appellate issues that might have been 

available if he had exercised his right to trial’” but reserved the right to appeal the validity of his guilty plea. 

See No: 06C1304, Memorandum Opinion and Order (ED

Ill., May 2, 2006), App. B to Pet. for Cert. 3. Petitioner 

nonetheless (allegedly) asked his attorney to file a notice 

of appeal to argue that the substance he distributed was

not crack cocaine. His attorney filed nothing. On collateral review, petitioner claimed that his attorney’s failure 

was ineffective assistance of counsel. The District Court 

denied the claim, finding that any appeal his attorney 

might have pursued was doomed because he waived his 

right to appeal and because petitioner had expressly identified the substance as crack cocaine in his guilty plea. On 

appeal, the Court of Appeals asked the parties to address 

the effect of its decision in Nunez v. United States, 495 

F. 3d 544 (CA7 2007), which held that Nunez’s plea

agreement waived his right to bring an identical ineffec-
 

2 STEPHENSON v. UNITED STATES 

SCALIA, J., dissenting 

tive-assistance claim on collateral review. The Government argued that petitioner’s case was materially indistinguishable from Nunez. The Court of Appeals summarily affirmed the District Court’s judgment. 

Petitioner asks us to consider his ineffective-assistance 

claim. That claim does not warrant our review, so I would 

deny his petition for certiorari. In the Brief for United 

States, the Solicitor General suggests that we GVR—grant 

the petition, vacate the judgment, and remand the case to

the Court of Appeals. He contends (contrary to the Government’s position below) that petitioner’s waiver is less

comprehensive than the waiver in Nunez. And since he 

thinks that the Court of Appeals’ reading of the waiver in 

Nunez was wrong (he has asked us to GVR in Nunez’s case

for that very reason), the Solicitor General concludes that,

inasmuch as the Court of Appeals might have agreed with

the Government’s (now repudiated) position below, the 

reasoning behind the judgment below may be wrong. The 

Solicitor General does not challenge the judgment below, 

nor does he take a position on petitioner’s ineffectiveassistance claim, insofar as that may have been the basis 

for the Court of Appeals’ summary order. 

As I state in my dissent in Nunez v. United States, ante, 

at ___, the Solicitor General’s confession of error in the 

Court of Appeals’ reasoning, but not its judgment, does not 

justify entry of a GVR order. That disposition is especially

inappropriate in this case because we cannot even be sure

that the Court of Appeals’ summary order was premised 

on the alleged error. See Lawrence v. Chater, 516 U. S. 

163, 184–186 (1996) (SCALIA, J., dissenting). For all we 

know, the Court of Appeals identified a difference in the

plea agreements and therefore summarily affirmed because it agreed with the District Court’s reasoning on the 

merits of petitioner’s ineffective-assistance claim.

I respectfully dissent.