ROPER, SUPERINTENDENT, POTOSI CORREC- TIONAL CENTER v. WEAVER

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598 OCTOBER TERM, 2006
Syllabus
ROPER, SUPERINTENDENT, POTOSI CORREC-
TIONAL CENTER v. WEAVER
certiorari to the united states court of appeals for
the eighth circuit
No. 06–313. Argued March 21, 2007—Decided May 21, 2007
The District Court dismissed respondent’s first federal habeas petition
without prejudice on the ground that his state postconviction proceed
ings were not exhausted while he had a certiorari petition pending.
After this Court denied certiorari, respondent refiled his habeas peti
tion, raising a claim essentially identical to that made in two other cases
in which the Eighth Circuit had granted habeas relief. Those cases,
like respondent’s first habeas petition, had been filed before the effective
date of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). The District Court granted relief. The Eighth Circuit af
firmed, but concluded that, because respondent’s petition was refiled
after AEDPA’s effective date, his claims must be evaluated under that
statute’s strict standard of review.
Held: The petition for writ of certiorari is dismissed as improvidently
granted. The District Court erred in dismissing respondent’s first ha
beas petition, which was fully exhausted and did not become unex
hausted upon his decision to seek certiorari, see Lawrence v. Florida,
549 U. S. 327. Regardless of whether, as respondent contends, AEDPA
is inapplicable to his case, it is appropriate for this Court to exercise its
discretion to prevent three virtually identically situated litigants from
being treated in a needlessly disparate manner, simply because the Dis
trict Court erroneously dismissed respondent’s pre-AEDPA petition.
Certiorari dismissed. Reported below: 438 F. 3d 832.
Andrea K. Spillars argued the cause for petitioner. With
her on the briefs were Jeremiah W. (Jay) Nixon, Attorney
General of Missouri, James R. Layton, State Solicitor, and
Stephen D. Hawke, Alana M. Barraga´ n-Scott, Heidi C. Doer
hoff, and Ronald S. Ribaudo, Assistant Attorneys General.
John H. Blume argued the cause for respondent. With
him on the brief were Sher i L. Johnson, Trevor W.
Morrison, Keir M. Weyble, Charles A. Weiss, Elizabeth C.

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599 Cite as: 550 U. S. 598 (2007)
Per Curiam
Carver, John W. Rogers, K. Lee Marshall, and James R.
Wyrsch.*
Per Curiam.
We granted certiorari in this case, 549 U. S. 1092 (2006), to
decide whether the Court of Appeals had exceeded its au
thority under 28 U. S. C. § 2254(d)(1) by setting aside a capi
tal sentence on the ground that the prosecutor’s closing
statement was “unfairly inflammatory.” Weaver v. Bower
sox, 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. 70 (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 codefend
ant. See Shurn v. Delo, 177 F. 3d 662, 666 (CA8 1999); New
lon v. Armontrout, 693 F. Supp. 799 (WD Mo. 1988), 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
*Kent S. Scheidegger filed a brief for the Criminal Justice Legal Founda
tion as amicus curiae urging reversal.
Carter G. Phillips and Jeffrey T. Green filed a brief for Interested
Former Oklahoma City Bombing Prosecutors as amici curiae urging
affirmance.
Michael C. Small and Pamela Harris filed a brief for the National Asso
ciation of Criminal Defense Lawyers as amicus curiae.

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600 ROPER v. WEAVER
Per Curiam
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 defend
ants in Newlon and Shurn, respondent filed his federal ha
beas 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 pris
oner chooses to pursue writ of certiorari, he must first ex
haust that remedy before filing a federal habeas corpus peti
tion.” 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 peti
tion for certiorari, or his habeas petition would be dismissed.
Respondent moved for reconsideration and for the ap
pointment of counsel. The District Court denied both mo
tions, reiterating its view that if respondent sought certio
rari, his federal habeas petition would be premature. When
respondent notified the District Court that a petition for cer
tiorari 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 proceed
ings.” Id., at 13. Though respondent had filed his habeas
petition before AEDPA took effect, the District Court dis
missed his petition after the statute was in force.
Still without an attorney, respondent requested a certifi
cate of appealability from the District Court. The court de
nied 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

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601 Cite as: 550 U. S. 598 (2007)
Per Curiam
Court of Appeals construed as a request for a certificate of
appealability and rejected.*
Respondent refiled his habeas petition after this Court de
nied review of his state postconviction proceedings. The
Eighth Circuit eventually concluded that, because respond
ent’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. 327
(2007), conclusively establishes that the District Court was
wrong to conclude that, if respondent chose to seek certio
rari, 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 applica
tion for state postconviction relief ”—even if a prisoner files
a certiorari petition. Id., at 332; see also id., at 332–333
(“[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 peti
tion, 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
cause to dismiss it.
Whether this unusual procedural history leads to the con
clusion, 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 discre
tion to prevent these three virtually identically situated liti
gants from being treated in a needlessly disparate manner,
*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.

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602 ROPER v. WEAVER
Scalia, J., dissenting
simply because the District Court erroneously dismissed re
spondent’s pre-AEDPA petition.
Accordingly, the writ of certiorari is dismissed as improvi
dently granted.
It is so ordered.
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.
Justice Scalia, with whom Justice Thomas and Jus
tice Alito join, dissenting.
The Eighth Circuit held in this case that the Missouri Su
preme Court had unreasonably applied clearly established
precedent of this Court in concluding that certain statements
made by the prosecutor during the penalty phase of respond
ent’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 599, we granted certio
rari to decide whether this holding comported with the Anti
terrorism 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 de
clines to answer it, dismissing the writ as improvidently
granted.
The reason is that the Court has become “aware,” ante, at
599, 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 600, 601. Believing that respondent is “virtually
identically situated” to two other litigants whose federal ha
beas petitions were not governed by AEDPA, and seeking
to avoid “treat[ing the three] in a needlessly disparate man
ner . . . simply because the District Court erroneously dis

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603 Cite as: 550 U. S. 598 (2007)
Scalia, J., dissenting
missed respondent’s pre-AEDPA petition,” the Court has de
cided to let stand the Eighth Circuit’s flagrant misapplication
of AEDPA, whether or not (and without deciding whether)
AEDPA governs this case. Ante, at 601–602.
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 scru
tiny. I discuss these two points in succession.
I
The Court provides no legal argument to support its asser
tion that respondent has a “colorabl[e]” claim, ante, at 601,
that the prior erroneous dismissal renders AEDPA inap
plicable to this case. Nor does respondent. See Brief for
Respondent 39, n. 44. I am aware of no authority support
ing 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 re
spondent’s failure to exhaust his appeals of the District
Court’s erroneous decision. See ante, at 601, 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. 327
(2007). See ante, at 601 (describing Lawrence as “clarif[y
ing]” the exhaustion rule).
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,

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604 ROPER v. WEAVER
Scalia, J., dissenting
372 U. S. 391, 435–438 (1963), we announced in no uncertain
terms that a federal habeas petitioner need not seek certio
rari 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. 497,
520, n. 17 (2007), has long understood Noia to stand for that
proposition. See P. Bator, D. Meltzer, P. Mishkin, & D. Sha
piro, 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 333. It logically follows
from Noia no less inescapably than from Lawrence that final
disposition of a pending certiorari petition is also unneces
sary to exhaust state-court remedies.
That the District Court had erred was no mystery to re
spondent in 1996. He correctly asked the District Court to
reconsider its decision to dismiss his habeas action, and in
stead to stay it pending disposition of his petition for certio
rari (which is the proper procedural way to handle such du
plicative filings). See App. to Brief for National Association
of Criminal Defense Lawyers as Amicus Curiae 8–11 (here
inafter 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 cer
tiorari “would almost certainly have been futile,” ante, at
601, n., I think it would almost certainly have been success
ful. We give special attention to capital cases (as today’s
delicate disposition shows), and since the District Court’s de
nial of a certificate of appealability occurred on August 1,
1996, see App. to NACDL Brief 1, more than three months

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Scalia, J., dissenting
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 sub
ject this defendant’s renewed request for federal habeas re
lief to AEDPA’s restrictions.
More fundamentally, however, even were the Court’s con
jecture 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 con
sequences 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 unre
versed, 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 rea
sonable 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 argument is not pre
sented), 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 “sim
*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 606–607.

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606 ROPER v. WEAVER
Scalia, J., dissenting
ply because the District Court erroneously dismissed [his]
pre-AEDPA petition.” Ante, at 601–602. No. He is being
treated differently because he, unlike them, seeks federal ha
beas relief by means of a petition filed after AEDPA’s effec
tive 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 con
sequence of respondent’s failure to exhaust his appeals.
The Court seems to be affected by a vague and discomfort
ing 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 respond
ent’s earlier petition was wrongfully dismissed. That fact
has relevance neither to the law governing this case (as dis
cussed 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 ac
tion particularly perverse is that it is the fault of respondent
that we did not know of the wrongful dismissal earlier. Be
fore we granted plenary review, respondent had never ar
gued 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 Bower
sox v. Weaver, No. 99–3462, pp. xvii–xix; Brief for Appellee/
Cross-Appellant in Bowersox v. Weaver, No. 03–2880 etc.,
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 respond

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607 Cite as: 550 U. S. 598 (2007)
Scalia, J., dissenting
ent’s merits brief, his argument (if it can be called that) con
sists of three sentences explaining the procedural history fol
lowed 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 pre
cisely to prohibit such sandbagging—and to avoid the ill
effects that minimal briefing has on the quality of our deci
sionmaking, as perfectly demonstrated by this case. Re
spondent 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 circum
stances 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 errone
ous precedent on the books. (That precedent, by the way,
cannot be explained away—as perhaps the Court’s own opin
ion 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

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608 ROPER v. WEAVER
Scalia, J., dissenting
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.