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SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

ARMANDO NUNEZ v. UNITED STATES 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
 

No. 07–818. Decided June 23, 2008 

The petition for a writ of certiorari is 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 federal narcotics offenses 

and waived appellate and collateral-review rights. Despite that waiver, he demanded (the Court of Appeals

assumed) that his attorney file a notice of appeal; his

attorney refused. Petitioner sought habeas relief, claiming

that this failure was ineffective assistance of counsel. See 

495 F. 3d 544, 545 (CA7 2007). The District Court denied 

relief, and the Court of Appeals affirmed, finding that 

petitioner had waived his right to raise even the ineffective-assistance claim on collateral review. See id., at 546, 

548–549. Petitioner has filed a petition for a writ of certiorari, asking us to consider the ineffective-assistance

claim. The Government argues in response that the question is not presented because the Court of Appeals’ opinion 

rests on petitioner’s collateral-review waiver. I agree with

that response, and so would deny the petition for writ of 

certiorari. 

Yet the Government urges us to GVR—to grant the

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

Court of Appeals—because it believes that the Court of

Appeals misconstrued the scope of petitioner’s collateral-
 

2 NUNEZ v. UNITED STATES 

SCALIA, J., dissenting 

review waiver. A majority of the Court agrees to that 

course. I do not. In my view we have no power to set 

aside (vacate) another court’s judgment unless we find it 

to be in error. See Mariscal v. United States, 449 U. S. 

405, 407 (1981) (Rehnquist, J., dissenting). Even so, I 

have reluctantly acquiesced in our dubious yet wellentrenched habit of entering a GVR order without an 

independent examination of the merits when the Government, as respondent, confesses error in the judgment 

below. See Lawrence v. Chater, 516 U. S. 163, 182–183 

(1996) (SCALIA, J., dissenting). But because “we have no 

power to vacate a judgment that has not been shown to be

(or been conceded to be) in error,” Price v. United States, 

537 U. S. 1152, 1153 (2003), I continue to resist GVR 

disposition when the Government, without conceding that 

a judgment is in error, merely suggests that the lower 

court’s basis for the judgment is wrong, see Lawrence, 

supra, at 183, and n. 3; cf. Alvarado v. United States, 497 

U. S. 543, 545 (1990) (Rehnquist, C. J., dissenting). That 

describes this case. The Government’s brief is entirely 

agnostic on the correctness of the Court of Appeals’ judgment—i.e., its affirmance of the District Court’s denial of 

habeas relief. Presumably, the Government believes the 

judgment is correct; it asked the Court of Appeals to affirm the District Court’s judgment the first time around,

and presumably will do the same on remand.

To make matters worse, the Government’s suggestion 

that the Court of Appeals erred in construing the scope of

petitioner’s waiver is not even convincing. The collateralreview waiver in petitioner’s plea agreement is inartfully

worded; it is perhaps susceptible of the Government’s 

reading, but in my view the Court of Appeals’ reading is

better. In any event, during his plea colloquy petitioner

orally agreed to a collateral-review waiver precisely in line 

with the Court of Appeals’ position. Compare Brief for

United States 3–4 (plea colloquy), with id., at 16–17 (plea 
Cite as: 554 U. S. ____ (2008) 3 

SCALIA, J., dissenting 

agreement). It is bad enough to upend the judgment of a 

lower court because the Solicitor General, while not saying 

the judgment was wrong, opines that the expressed basis

for it was wrong; it is absurd to do this when the Solicitor 

General’s gratuitous opinion is dubious on its face. 

Finally, we should be especially reluctant to GVR on the 

Solicitor General’s say-so when, if that say-so is correct, 

the likely consequence will be to create a conflict among 

the Courts of Appeals. Before resting its judgment on

petitioner’s collateral-review waiver, the Court of Appeals 

expressed its unfavorable view of petitioner’s ineffectiveassistance claim, recognizing, however, that its view contradicted the view of at least six other Courts of Appeals. 

See 495 F. 3d, at 546–548. If, on remand, the Court of 

Appeals agrees with the Solicitor General that petitioner’s 

collateral-review waiver does not preclude his claim, the 

court in all likelihood will enter the same judgment by 

rejecting petitioner’s ineffective-assistance claim, thereby

creating (absent reversal en banc) a split with those other 

courts. I had thought that the main purpose of our certiorari jurisdiction was to eliminate circuit splits, not to

create them. 

For all these reasons, I respectfully dissent from the

Court’s order.