_________________ 

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(Slip Opinion) Cite as: 550 U. S. ____ (2007) 1 

Per Curiam 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 06–313 

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

[May 21, 2007] 

PER CURIAM. 

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 prosecutor’s 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), 110 Stat. 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 cases—one of which involved respondent’s codefendant. See Shurn v. Delo, 177 F. 3d 662, 666 (CA8 1999); 

Newlon v. Armontrout, 693 F. Supp. 799 (WD 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 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 respondent’s 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 Court’s 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 respondent’s 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 
Cite as: 550 U. S. ____ (2007) 3 

Per Curiam 

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 respondent’s petition. 

Id., at 5–6. 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 respondent’s petition was filed after AEDPA’s effective date, his 

claims must be evaluated under that statute’s 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 relief”—even if a prisoner files a certiorari petition. Id., at ___ (slip op., at 4); 

see also id., at ___–___ (slip op., at 4–5) (“[W]e have said 

that state prisoners need not petition for certiorari to

exhaust state remedies” (citing Fay v. Noia, 372 U. S. 391, 

435–438 (1963))). Thus, respondent’s 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 

—————— 

*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. 
4 ROPER v. WEAVER 

Per Curiam 

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 respondent’s pre-AEDPA petition. 

Accordingly, the writ of certiorari is dismissed as improvidently granted. 

It is so ordered. 
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Cite as: 550 U. S. ____ (2007) 1 

ROBERTS, C. J., concurring in result 

SUPREME COURT OF THE UNITED STATES 

No. 06–313 

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

[May 21, 2007] 

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. 
_________________ 

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Cite as: 550 U. S. ____ (2007) 1 

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 06–313 

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

[May 21, 2007] 

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 respondent’s capital trial did not rise to the level 

of a due process violation. Weaver v. Bowersox, 438 F. 3d 

832, 839–842 (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 hour’s 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 respondent’s post-AEDPA habeas petition was

filed only because the District Court had erroneously 

dismissed an earlier petition filed prior to AEDPA’s 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 
2 ROPER v. WEAVER 

SCALIA, J., dissenting 

erroneously dismissed respondent’s pre-AEDPA petition,” 

the Court has decided to let stand the Eighth Circuit’s 

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 respondent’s pre-AEDPA petition, but that 

seems to me no justification for aborting this argued case. 

The District Court’s 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

Court’s error should in no way alter our prior determination that the Eighth Circuit’s application of AEDPA 

deserves our scrutiny. I discuss these two points in 

succession. 

I 

The Court provides no legal 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 Court’s error. 

To begin with, any resort to equity would founder on

respondent’s failure to exhaust his appeals of the District

Court’s erroneous decision. See ante, at 3, n. The Court is 

untroubled by respondent’s 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 Court’s 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). 
Cite as: 550 U. S. ____ (2007) 3 

SCALIA, J., dissenting 

This seems to me quite wrong. The District Court’s 

error was as apparent in 1996 as it was in 1966. In Fay v. 

Noia, 372 U. S. 391, 435–438 (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 an authority than Hart & Wechsler’s 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 &

Wechsler’s The Federal Courts and the Federal System

1555 (3d ed. 1988); id., at 1446 (4th ed. 1996); id., at 1391 

(5th ed. 2003). Indeed, Lawrence’s “clarifi[cation]” consisted of nothing more than citing the same old pages in 

Noia. See Lawrence, supra, at ___–___ (slip op., at 4–5). 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-court 

remedies. 

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 8–11 (hereinafter NACDL Brief). And he then filed a 

notice of appeal and unsuccessfully sought a certificate of

appealability. See id., at 1–7. 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 
4 ROPER v. WEAVER 

SCALIA, J., dissenting 

almost certainly have been successful. We give special 

attention to capital cases (as today’s delicate disposition 

shows), and since the District Court’s denial of a certificate of appealability occurred on August 1, 1996, see App. 

to NACDL Brief 1, more than three months after AEDPA’s 

effective date, see Woodford v. Garceau, 538 U. S. 202, 204 

(2003), it would have been obvious that our refusal to

correct the District Court’s clear error would subject this

defendant’s renewed request for federal habeas relief to

AEDPA’s restrictions. 

More fundamentally, however, even were the Court’s 

conjecture correct that diligence on respondent’s 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 Court’s prior uncorrected

error has caused this habeas petition to be subject to 

AEDPA’s entirely reasonable restrictions.* 

II 

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 argu-

—————— 

*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 respondent’s merits brief in this Court. See infra, at 5–6. 
Cite as: 550 U. S. ____ (2007) 5 

SCALIA, J., dissenting 

ment 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 Court’s

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 AEDPA’s effective date. Is 

what happened here any less rational, any less fair, a 

basis for differential treatment than the random fact that 

one petitioner’s habeas action was filed a day before

AEDPA’s effective date, and another petitioner’s 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 respondent’s 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

respondent’s 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 today’s 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 
6 ROPER v. WEAVER 

SCALIA, J., dissenting 

review, respondent had never argued that AEDPA should

not apply because of the District Court’s error. He made 

no such claim either time he was before the Eighth Circuit. See Brief for Appellee in Bowersox v. Weaver, No. 

99–3462, pp. xvii–xix; Brief for Appellee/Cross-Appellant 

in Bowersox v. Weaver, 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, even in respondent’s 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. 

Respondent’s 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, respondent’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 quality of our decisionmaking, as perfectly demonstrated by

this case. Respondent and his counsel should not profit 

from their flouting of this Court’s 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 today’s cancellation is not to the State of 
Cite as: 550 U. S. ____ (2007) 7 

SCALIA, J., dissenting 

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. 

For the foregoing reasons, I respectfully dissent.