_________________

_________________ 1 (Slip Opini o n) Cite as: 55 0 U

. S. ____ (2007)
Per Curiam
NOTICE: This op i n ion is subjec t to f o rmal revi si on bef o r e publicat ion in the p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o r t e rof D e c i s i on s , Su p r em e C o u r t of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

## SUPREME CO URT O F THE UNI TED STATES

No. 06–3 13
DON R O PE R, SUP ERI NTEN DE N T , POT O SI

C O RR EC T I O NALC E NT E R , PE T I T I O N ER v. WILLIAM WEAVE R ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE EIGHTH CIRCUIT [M ay21, 2007 ] P ERC UR IAM

. We granted certiorari in this case, 549 U. S. ___ (2006), to decide whether the Court of Appeals had exceeded its authority u n der 28 U. S. C. §2254(d)(1) by se tting aside a capital sentence on theground that the prosecutor’ s clos

ing statement was “unfairly inflammatory.” Weav erv. Bowersox , 438 F. 3d 832, 841 (CA8 2006). Our primary concern wa s whether t h e Court of Appeals’ a pplication of the more s tringent s t andard of review man d ated by the Antiterroris m and Effective DeathPenalty Act of 1996, (AEDPA), 1 10 Stat. 12 14, was consistent with our inter

pretation of that s t atute. Cf. Careyv. Musladin , 549 U. S. ___ (2006). We are now aware of circum s tances that persuade us that dismissal of the writ is the appropriat e manner in which to dispose of this case. The argument made b ythe prosecutor in this case was essentially the same as the argum e nt that he made in two other cases

—one of w h ich involved respondent’ s codefen

dant. See Shurnv. De lo , 177 F. 3d 662, 666(CA8 1999); Newlonv. Armontrout , 693 F. Su pp. 799 (W D Mo. 1988 ),2 ROPER v. WEAVER
Per Curiam aff’d, 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 AEDPA’s e ffective date. Federal habeas reli ef was grante din all three cases. T h e State does not ques

tion the pro p riety of relief in the ot her two cases because it was clear at the time, as it is now, that A E D PA did n o t apply to either of them. Respondent argues, for the following reasons, that AED PA should not govern his case either. Like the defen

dants in N ewlonand Shurn , res p ondent filed his federal habeas peti tion before the effe ctive date of A E DPA. In

stead of considering respondent’s claims, however, th e DistrictCo urt su a spo n testa y ed the habeas proceedings, noting that respondent had indicated his inten t ion to file a petition for writ of certi orari seeking this Cour t’s reviewof the state c o urts’ deni al of postconviction relief. Though the Distric tCourtre cognized th at respond e nt was n o t required to seek certiorari from this Court, it concluded that, if “a s t ate prison er chooses to pursue writof cert io

rari, he must first exhaust t hat remedy b e fore filinga federal habeas corpus petition.” App. to Bri e f for National Association of Criminal Defense Lawyers as Amicus Cu

riae15. T hus, the D i strict Cou rt pu t resp ondent to a choice: He could forgo filing a pe tition for certiorari, or hi s habeas peti tion would be dismissed. Respondent moved for reco nsideration and for the ap

pointment of counsel. The Dist rict Court denied bot h motions, reiterating its view that if respon dent sough t certiorari, his federal h abeas pe titi on would be premature

. When respondent notified the Di strict Courtthat apet i

tion for certiorari had been filed, the court m a de good on its promise: It dismis sed respon dent’s habeas petition “without prejudice” to his ref iling “following exhaustion of his state proceedings.” Id., at 13. Though respondent had filed his h abeas petit i on be fore AED PA took effect, th e3 Cite as: 55 0 U

. S. ____ (2007)
Per Curiam DistrictCo urt dismissed his petition after the statute w a s in force. Still without an attorney, respondent requested a cer

tificate of a ppealability from the District Court. The court denied the request, opi n ing that reasonabl e j u rists could not disagree with the dismissal of respondent’s petition. Id., at 5–6. Respondent also filed a notice of appeal, which the Court o f Appeals c o nstrued as a request for a certifi

cate 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 respon

dent’s petit i on was filed after AE DPA’ s effec t ive date, h i s claims must be evalua ted under that statute ’ s strict sta n dard of review. See Weave rv. Bowersox , 241 F. 3d 1024, 1029 (2001). Our recentdecision in Lawren cev. Florida , 549 U. S. ___ (2007), conclusively establishes that the District Co urt was wron gto conclude that, if respondent chose to seek certiorari, he had to exhaust that remedy before filing a federal habeas petition. Lawr enceclarified that “[s]ta t e review ends when the state courts have finally resolved a n application for state postconvictionrelief”—even if a pris

oner files a certiorari petition. Id., at ___ ( s lip op., at 4); see als o id. , at ___–___ (slip op., a t4–5) (“[W]e have said that state prisoners n eed no t petition for certiorari to exhaust state remedies ” (citing Fa yv. Noia , 372 U. S. 391 , 435–438 (1963))). Thus, respondent’s habeas petition, which was fully exhausted wh en filed, didnot become unexhausted upon his decision to seek certiorari. Because the petition was not pr emature, the District C o urt had no

——————

* Res p ondent did nots eek rehea r ingor rehea r ingen b a n c in the Courtof Appea l s , nor did he file apet i t i on for writof ce rt iora ri from t h e den i al of th e c e r t ific ate of ap peala b ili ty

. Pu r s u i t of eith erw o u l d almos t cert a i nly haveb een fut ile.4 ROPER v. WEAVER
Per Curiam cause to dismiss it. Whether this unusualprocedural history leads to the conclusion, as respondent colorably contends, that the AEDPA sta n dard is si mply inapplicable to this case, is a question we find unnecessary to resolve. Regardless of the answer to that question, we find it appropria t e to exercise our discreti on to preve n t these th ree virtually identically situated liti g ants from being treated in aneedlessly disp a rate manner, simply becaus e th e District Court erro ne ously dismissed respondent’s pre- AEDPA petition. Accordin gly , the writ of certiorari is dismissed as im

providently granted. It is so orde red._________________

_________________ 1 Cite as: 55 0 U

. S. ____ (2007)
R OBERTS , C. J., co nc urri ng inres u lt 

## SUPREME CO URT O F THE UNI TED STATES

No. 06–3 13
DON R O PE R, SUP ERI NTEN DE N T , POT O SI

C O RR EC T I O NALC E NT E R , PE T I T I O N ER v. WILLIAM WEAVE R ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE EIGHTH CIRCUIT [M ay21, 2007 ] C HIEF J UST I CE R OBERT S , concurrin gin the result. While I do not agree with all th e reasons given in the per cu riam for the discretionarydecision t o dismiss t h e writ as imp r ovidently g r anted in t h is case, I do agree wit h that disposition._________________

_________________ 1 Cite as: 55 0 U

. S. ____ (2007)
S CALI A , J., dissenting 

## SUPREME CO URT O F THE UNI TED STATES

No. 06–3 13
DON R O PE R, SUP ERI NTEN DE N T , POT O SI

C O RR EC T I O NALC E NT E R , PE T I T I O N ER v. WILLIAM WEAVE R ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE EIGHTH CIRCUIT [M ay21, 2007 ] J USTICE S CALIA , with whom J UST I CE T HOMAS and J US

TICE ALITO join, dissen t ing. The Eighth Circuit held in this case that the Missouri Supreme Court had unreasonabl y applied clearly estab

lished precedent of this Court inconcludingthat ce rtai n statements made by the pros ecutor during the penalty phase of respondent’s capital tri aldid not ris e to the level of a due process violat ion. Weave rv. Bow ers ox , 438 F. 3d 832, 839–8 42 (2006). As the Court says, ante, at 1, we granted ce rtiorari to decide whether this holding com

ported withthe Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 2 8U. S. C. §2254(d)(1). We received briefing, an d heard an hour’s argu ment, on th at question. Yet now th e Court de clines to answer it, d i smissing the writ as imp r ovidently g r anted. The reasonis that the Court has become “aware,” ante, at 1, that respondent’s post-AEDPA habeas petition was filed only because the District Court haderroneously dismissed an earlier petition filed prior to AE DPA’ s effec

tive date, ant e, at 3. Believing that respondent is “virtu

ally identically situated” to t w o other litigants whos e federal habeas petitions were not governed by AEDPA , and seek ing to avoid “treat[ing the three] in a needlessl y disparate manner .

. . simply because the District Court2 ROPER v. WEAVER
S CALI A , J., dissenting erroneouslydismissed respondent’ s pre-AEDPA petition,” the Court has decided to let st and the Ei ghth Cir c ui t’s flagrant mi sapplication of AEDPA, whether or not (an d without deciding whe t her) AE D PA govern s this case. Ante, at 4. I fully agre e with the Court tha t t h e District Court er red in dismissi ng respondent’s pre-AEDPA petition, but that seems to me no justification for aborting this argued case

. The Distric tCourt’s p r evious error does not affect th e legalconclu sion that AEDPA appl ies to this new petition. And once it is admitted that AE D PA governs , the District Court’s err o r should in no way alter our prior determina

tion that the EighthCircuit ’s application of AE DPA deserves our scru tiny

. I discuss these tw o points in succession. I The Court provides no legal argument to su pport its assertion that respondent has a “colorabl[e]” claim, ante , at 4, that the prior erroneous dismissal renders AED PA inapplicable to this ca se. Nor do es respondent. See B r ief for Respondent 39, n. 44. I am aware of no authority supporting the proposition that respondent i s legally or equitably entitled to evade the co llateral consequences of the DistrictCourt’s err o r. To begin with, any resort to equity would f o under on respondent’s failure to exhaust his appeals of the District Court’ s erroneous decis i on. See ante, at 3, n. The Court i s untroubled by respon dent’s lack of dil i gence because, it says, furth er appellate revi ew “would almost certainly have beenf u tile.” Ibid

. The Cou rt does notexplain the basis for t h is pessimistic assess ment, but the reason seems to b e its b e li ef that the District Court ’ s error was not clear until our recent decision in Lawren cev. Florid a , 549 U. S. ____ (2007). See ante , a t3 (describi ng La wren c e as “clarif[yi n g]” the exh austion rule).3 Cite as: 55 0 U

. S. ____ (2007)
S CALI A , J., dissenting This seems to me quite wrong. The Distri ct Cour t’s error was a s apparent in 1996 as it was in 1966

. In Fayv. Noia , 372 U. S. 391, 4 35–438 (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 a nauthority than Hart & Wechsler’s The Fed

eral Courts and the Federal System,” Massachus ettsv. EPA , 549 U. S. ___, ___ (2007) (s lip op., at 17, n. 17), h a s long understood Noia to stand for that pr oposition. See P. Bator, D. Meltzer, P. Mishkin, & D. Shap iro, Hart & Wechsler’s The Federal Courts a n d the Fed e ral Syste m 1555 (3d ed. 1988); id. , at 1446 (4th ed. 1996); id. , at 1391 (5th ed. 2003). Indeed, Lawr enc e ’s “clarifi[c a tion]” con

sisted of nothing more than citin gthe same old pages in Noia

. See Law renc e , supra, at ___–___ (sl i p op., at 4–5). It logically fol l ows from Noiano les s inescapably than fro m Law renc ethat final d i sposition of a pendin g certiorari petition is also unnecessary to exhaust state-court remedies. That the District Cour t had erred was no mystery to respondent in 1996. He corre ctly asked the District Court to reconsider its decision to dismiss his habeas action, an d instead to stay it pending disposition of his petition for certiorari ( w hich is th e prop er procedural way to handl e such duplicative filing s ). See App. to Brief for National Association of Criminal Defense Lawyers as Amicus Cu

riae8–11 (hereinafter NACDL Brief). And he then filed a notice of appeal and unsuccessf ully sought a certificate of appealabilit y. See id. , at 1–7. Respondent (who thereto

fore had shown himsel f to be a hi ghly capabl e pro se liti

gant, undo ubtedly aware of th e availability of en banc and certiorari review) simply gave up too early. There is no more reason in this ca se than in any other to excuse th e failure to make use of all available mean s of review. Far from thinking that a petition for c e rtiorari “w ould almost certainly have been fu tile,” ante, at 3, n., I t h ink it would4 ROPER v. WEAVER
S CALI A , J., dissenting almost certainly have been successful. We give special attention to capital cases (as today’s delica t e disposition shows), and since the District C o urt’s denial of a certifi

cate of appealabil i ty occurred on August 1, 1 996, see App. to NACDL Brief 1, mor e than three months af ter AEDPA’s effective da te, see Woodfordv. Ga rceau , 538 U. S. 202, 2 04 (2003), it would have been obvi ous that our refusal to correctthe DistrictCo urt’s cl ear error wouldsubject thi s defendant’s renewed request fo r federal habeas relief to AED PA’s restrictions. More fundamentally, however, even were t h e Court ’ s conjecture correct tha t diligen ce on respondent’s pa rt would not have been rewarded, neither AEDPA nor an y principle of law would e n title him to relief from the collat

eral consequences of an uncorrect ed judicial error. We held in Dan i elsv. Unit ed St at es , 53 2 U. S. 374, 382 (2001 ) that “[i]f .

. . a prior co nviction 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 w h ile they w e re available (or because the def e n dant didso unsuccessfu lly), then th at defendan t is wi thout recourse.” (Emphasis added.) If a defendant is subj ect to additio n al jail timebecause a prior erroneous conviction went unreversed, surely respondent cannot complain about the fact that th e Dis trict Court’s pri o r uncorrected error has caused this habeas petition to be subject to AEDPA’s e n tirely reasonable restr i ctions.* II There having been eliminated the possibi lity that AEDPA is inapplicable to this case (and h e nce that the question onwhich we granted certiorari and heard argu

-

——————

* Of co urs e, e v en if s o me n o vel a r gument for the inapplicabi lity of AEDPA exis t s , res p ondenta n d t h e Cou r t have note x pla i ned whyt h e cla i m has not b een wa ived, given t h a tt h is is s u e was rais ed for the first timein res p ondent ’s merit s b r ief in t h is Court

. S e e inf ra , at 5–6.5 Cite as: 55 0 U

. S. ____ (2007)
S CALI A , J., dissenting ment is not presented) what possible justification remains for canceling our gran t of certiorari after full briefing and argument? There disappears, along with the claim of AEDPA inapplicability, any substance to the Cour t’s contention that respondent is “vir tually identically situ

ated” to th e two otherlitigants w i th similar claims, and that he is being treated differently “simply because the DistrictCo urt errone ously dismissed [his] pre-AE DPA 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 AE DPA’ s effec t ive date. I s what happened here any less rational, any less fair, a basis for dif f erential treatment than the random fact tha t one petitioner’s habeas action was filed a day before AEDPA’s effective date , and ano th er petitioner’s could no t be filed until one day after? Would the Co urt enterta in the thoughtthat if those two petit i ons involved the same sort of closi n g argume nt by the same prosecutor, the sec

ond of them would have to be exempted from AEDPA? If anything, the differential treatment is more justified here, since the l a ter filing was not randomly determined, b u t was lik ely the conseq uence of re spondent’ s failure to e x haust his appeals. The Court seems tobeaffected by a vague a n d discom

forting feeling that th ings are different now from what they were when we gr anted certiorari. They are so only in the respectthatwe n o w kno w , a s we didn o t then, th at respondent’s earlier petitionwas wrongfull y dismissed. That fact h a s relevance neither to the law governing this case (as dis c ussed in Part I, supra) nor to any equities th a t might justify our bringing to naught the parties’ briefing and argum e nts, and the Justices’ deliberations, on the question for which thi s petition was gran ted. Butwh at makes today’s wastefulaction part icularly per v erse is that it is th e fault of respondent that we did not know of th e wrongful d i smissal earlier. Before we gran ted plenary6 ROPER v. WEAVER
S CALI A , J., dissenting review, respondent had never argued that AEDPA should not apply b e cause of the District Court’s err o r. He made no such claim either time he was before the Eighth Cir

cuit. See Brief for Appellee in Bowersox v. Weav er , No. 99–3462, pp. xvii–xix; Brief for Appellee/Cross-Appellant in Bowersox v. Wea v er , No. 03–2880 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 Court’s Rule 15.2. Indeed, ev en in respondent’s mer

its brief, hi s argument (if it can be called tha t) consists of three sentences explaining the procedural history followed by a conclusory asserti on, all buried in footnote 44 on pa ge 39. Respondent’ s delayed invocation of this i ssu e has n o t only not b een sanctio n ed; it has been rewarded. Had respondent raised his s p ecious clai m of AEDPA inapplica

bility in a timely man n er, petitioner would have had the opportunityto blow itout of the wa ter. Wheth e r by wayof calculus or through du mb luck, re spondent’s tardiness has succeeded in confounding the Court. We promulgated Rule 15.2 precisely to prohibit such sandbagging—and to avoid the ill effects that minimal briefing has on the qual

ity of our decisionma k i ng, as pe rfectly dem o nstrated b y this case. Respondent and his counsel sh oul dnot profit from their flouting of this Court’s Rules. * * * I would thu s answer the questi o n on which we granted certiorari a n d receivedfull briefing and argument. Be

cause plenary review h a s convinced me beyond doubt tha t the Missou r i Supreme Court did not unreas o nably apply clearly established precedent of this Court, I would re

verse the judgment of t h e Eighth C i rcuit. A postscript is warranted in light of the unusu a l circum

stances in which we dispose of this case. The greate st harm done by toda y’s cancellation is not to the Sta t e of7 Cite as: 55 0 U

. S. ____ (2007)
S CALI A , J., dissenting Missouri, which will have to retry this murder case almost two decade s after the original trial—though that is harm enough. The greatest harm is th at done to AEDPA, si nce dismissing the writ of certiorari leaves the Eighth Cir

cuit’ s grossly erroneous precedent on the book s. (That precedent, by the wa y, cannot be explain e d away— a s perhaps th e Court’s own opin ion can—as the product of law-distorti ng compassion for a d e fendant wronged by a District Co urt’s erron eous acti on. As noted earlier, the Eighth Circ uit was notinformed of that er roneous action. It presumably really believes that this is the way AEDPA should be applied.) Other courts should be warned tha t this Court’s failure to reverse the Eighth Ci rc uit’s decision is a rare manifestation of judicial clemency unrestrained by law. Th ey would be well advised to do unto the Eighth Circuit’s de cision just what it did unto AEDPA: ignore it. For the foregoing reasons, I respec tfully dissent.