Monday, May 21, 2007

Roper v. Weaver

I've read the Court's per curiam decision in Roper v. Weaver, but I'm not sure of its significance to anyone beyond the parties involved. The case involved a petitioner appealing his capital conviction on the grounds that the prosecutor's closing argument was "unfairly inflammatory." The 8th Circuit considered and granted his claims under AEDPA's standards. However, the claim would have been brought pre-AEDPA except for the district court dismissing the original habeas writ because it found petitioner had not exhausted his state remedies through a writ of certiorari to the U.S. Supreme Court.

In Lawrence v. Florida, 549 U.S. _____ (2007), the Court held that the disposition of a writ of certiorari is not required to exhaust state remedies, and therefore a petitioner's decision to seek cert. during his direct appeal does not require dismissal of a federal habeas claim. Therefore, the District Court did not have cause to dismiss the original claim.

However, the Court did not rule on whether AEDPA's applicability or the 8th Circuit's decision, but rather dismissed the writ as being improvidently granted. In addition to the facts stated above, it did so in part because the prosecutor made similar arguments in two other cases, including one involving petitioner's co-defendant. Both of the defendant's were granted habeas relief because of the remarks, and the Court "[found] 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."

Justice Roberts filed a short concurring opinion, stating that he agreed with the decision of the court, but not all of its reasoning. He was not more specific.

Justice Scalia, jointed by Justices Alito and Thomas, dissented. Here is the highlight:

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 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.

So, what does the opinion mean? Obviously, it has no precedential value -- it is merely a dismissal of the writ. However, I can see it standing for the persuasive principle that when looking at the merits under 2254(d)(1), AEDPA's rigorous standard of review will not function as a bar preventing similarly situated petitioners from being treated the same and receiving relief. Co-defendants would be the most clearly implicated by this principle - but beyond that - who knows?