Amicus Curiae Brief — Roper v. Weaver

Y

No. 06-313

IN THE

Supreme Court of the United States

DONALD P. Roper, Superintendent,

Potosi Correctional Center,

Petitioner,

VS.

WILLIAM WEAVER,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

BARRY LATZER KENT S. SCHEIDEGGER

John Jay College of Criminal Counsel of Record

Justice, CUNY Criminal Justice Legal Fdn.

445 W. 59th Street 2131 L Street

New York, NY 10019 Sacramento, CA 95816

(212) 237-8192 (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

(Intentionally left blank)

QUESTIONS PRESENTED

Did the Eighth Circuit Court of Appeals exceed its authority

under AEDPA when it affirmed the issuance of a writ of habeas

corpus for prosecutorial misconduct issues that have never been

the subject of a holding by the Supreme Court of the United

States?

(Intentionally left blank)

TABLE OF CONTENTS

I ia 0:50:46 0.5 6.4.09 06 506 RE CR eucannienie i

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I

The Supreme Court of Missouri was entitled to deference

under AEDPA when it decided summarily, but on the

merits, that remarks by the prosecutor during the

sentencing phase of a capital trial were permissible .... 7

Il

The Eighth Circuit Court of Appeals exceeded its authority

under AEDPA when it affirmed the issuance of a writ of

habeas corpus for prosecutorial argument issues that are

neither materially indistinguishable from a Supreme Court

precedent, governed by a specific rule in Supreme Court

precedent, nor an obvious and cgregious violation of

SE vcdusskbyee decd ceeaddususesedes 14

Conclusion sa aa Sree ee aac ie a PES TO re 27

Appendix

iv

TABLE OF AUTHORITIES

Cases

Brooks v. Kemp, 762 F. 2d 1383 (CA11 1985)...... 23, 26

Brown v. Luebbers, 371 F. 3d 458 (CA8 2004)......... 10

Caldwell v. Mississippi, 472 U. S. 320, 105 S. Ct. 2633,

tm Fe ) TT eee eee 17

Canaan v. McBride, 395 F. 3d 376 (CA7 2005) ........ 10

Carey v. Musladin, 549 U.S. _, 127 S. Ct. 649,

166 L. Ed. 2d 482 (2006) ......... 4,5, 7, 14, 15, 16, 23

Clark v. Commonwealth, 833 S. W. 2d 793

RE | Me errrrr ree eee eT 26

Clemons v. Mississippi, 494 U. S. 738, 110 S. Ct. 1441,

1 § Ff.) perrrre rr rrr ee = 11

Collins v. Francis, 728 F. 2d 1322 (CAI1 1984)........ 25

Copeland v. Washington, 232 F. 3d 969 (CA8 2000) .... 17

Darden v. Wainwright, 477 U. S. 168, 106 S. Ct. 2464,

eS F 2 Pere ee 17, 18, 19

Donnelly v. DeChristoforo, 416 U.S. 637, 94S. Ct. 1868,

40 L. Ed. 2d 431 (1974) ............. 17, 19, 20, 21, 25

Edwards v. State, 737 So. 2d 275 (Miss. 1999) ......... 25

Estelle v. Williams, 425 U. S. 501, 96S. Ct. 1691,

SBE. GE Be CPUS 606 hank cevitessouensas 15

Fortini v. Murphy, 257 F. 3d 39 (CA1 2001) .......... 10

Furman v. Georgia, 408 U. S. 238, 92 S. Ct. 2726,

FP he EE SUED 6. dno Ckdscaseensetsstee 20

Hogan v. Gibson, 197 F. 3d 1297 (CA10 1999) ........ 10

Holbrook v. Flynn, 475 U. S. 560, 106 S. Ct. 1340,

Ee cs eo eae one cenenes 15, 16

Hope v. Pelzer, 536 U. S. 720, 122 S. Ct. 2508,

ES A ee 14

James v. Bowersox, 187 F. 3d 866 (CA8 1999) ........ 10

Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166,

i ED <cccccntensdceasscecs 14, 15

Mancuso v. Herbert, 166 F. 3d 97 (CA2 1999) .......... )

Muth v. Frank, 412 F. 3d 808 (CA7 2005) ............ 10

Newlon v. Armontrout, 885 F. 2d 1328

Nee Sct eekeeee seusies 25, 26

Romano v. Oklahoma, 512 U.S. 1, 114. S. Ct. 2004,

re 17, 19, 21, 22

Roper v. Weaver, 127 S. Ct. 763, 166 L. Ed. 2d 590

a eee ene dneth ca khibkeeseccceceece 4

ih yan v. Miller, 303 F. 3d 231 (CA2 2002) ............ 13

Sawyer v. Smith, 497 U.S. 227, 110 S. Ct. 2822,

i ED coc cdbsacsececceecescess 21

Shurn v. Delo, 177 F. 3d 662 (CA8 1999) ... 2.0.2.2... 27

Slack v. McDaniel, 529 U. S. 473, 120 S. Ct. 1595,

es cd eee eeeendecssene r)

State v. Armbruster, 641 S. W. 2d 763 (Mo. 1982) ...... ll

State v. Irick, 762 S. W. 2d 121 (Tenn. 1988) .......... 25

State v. Knighton, 436 So. 2d 1141 (La. 1983) ......... 26

vi

State v. Rose, 548 A. 2d 1058 (N.J. 1988)............. 25

State v. Tyler, 50 Ohio St. 3d 24, 553 N. E. 2d 576

rr eee ee ee, ey ee 24

State v. Weaver, 912 S. W. 2d 499

DD o. cciueanuskadabiedsKae 2, 3, 8, 11, 12, 13

Van Tran v. Lindsey, 212 F. 3d 1143 (CA9 2000) ....... 9

Weaver v. Bowersox, 241 F. 3d 1024 (CA8 2001) ..... 4,9

Weaver v. Bowersox, 438 F. 3d 832 (CA8 2006) ... Passim

Weaver v. Bowcrsox, No. 4:96-CV-2220-CAS

DS. PEEEE Shc covceeducdupdwesacenees 3

Weaver v. Bowersox, No. 4:96-CV-2220-CAS

i Cin vin cou béundeehhwe aes6 aud 4,8

Weaver v. Missouri, 519 U. S. 856, 117 S. Ct. 153,

Cee eee er oS 3

Williams v. Taylor, 529 U. S. 362, 120 S. Ct. 1495,

146 L. Ed. 2d 389 (2000) ................. 6, 7, 14, 16

Witter v. State, 112 Nev. 908, 921 P. 2d 886 (1996) ..... 25

Woodford v. Garceau, 538 U. S. 202, 123 S. Ct. 1398,

me Fs re re 9

Woodson v. North Carolina, 428 U. S. 280, 96 S. Ct. 2978,

ey Ee EE. do cob aaacdacebasuusescas 18

Yarborough v. Alvarado, 541 U.S. 652, 124 S. Ct. 2140,

rs CH EE no a nnesdntucdovaccenueey 15

United States Statute

rs ee ee ED 2. ip Sd dnp es censasunnusnes 4,5,9

vu

Secondary Authorities

Committee Report and Proposal from the Judicial

Conference of the United States Ad Hoc Committee on

Federal Habeas Corpus in Capital Cases, reprinted in

BSS Came, Be. SEGOS CITES onc cc cccccccccccccss:

IN THE

Supreme Court of the United States

DONALD P. RoPER, Superintendent,

Potosi Correctional Center,

Petitioner,

vs.

WILLIAM WEAVER,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a

nonprofit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tion of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

This case exemplifics an unfortunate tendency of federal

courts to skirt the restrictions imposed on them by Congress in

the Antiterrorism and Effective Death Penalty Act of 1996

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief. ;

Both parties have given written consent to the filing of this brief.

(AEDPA). In the interest of comity, respect for state court

processes, especially the processes that affect the administration

of justice, and finality in capital cases, Congress restricted the

authority of federal courts to issue the writ of habeas corpus to

those state court decisions that are “contrary to, or involve[] an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.”

In the face of this limitation, federal courts are not free to

issue the writ to correct every perceived state court error in the

interpretation of federal law. Rather, they may only issue the

writ in the face of decisions that are patently incompatible with

United States Supreme Court case law. It is revealing that the

Eighth Circuit Court of Appeals, in this very case, redacted

from its recitation of the text of 28 U. S. C. §2254(d)(1) the

words “as determined by the Supreme Court of the United

States.”

This case presents another opportunity for this Court to give

effect to Congress’s limitation on the lower federal courts. It

is apparent that the temptation to overstep AEDPA’s bound-

aries simply is too great. This Court must, therefore, once

again reaffirm the necessity of deference to the state judiciary.

This deference is essential to the efficient and reliable determi-

nation of guilt and the swift execution of punishment that

serves as the principal goal of the CJLF.

SUMMARY OF FACTS AND CASE

Before July 1987, a federal drug prosecution began against

Daryl Shurn’s brothers, Charles and Larry Shurn, in which

Charles Taylor was to be a key witness. Taylor had worked for

the Shurns and held some of the Shums’ drug houses in his

name. State v. Weaver, 912 S. W. 2d 499, 507 (Mo. 1995).

On July 6, 1987, William Weaver and Daryl Shurn arrived

at Taylor’s home to force Taylor to sign over the Shurns’ drug

properties. After Taylor had signed the paperwork, Weaver

was supposed to kill Taylor. However, Taylor unexpectedly

pulled a gun and escaped. Weaver and Shurn gave chase and

fired several shots at Taylor. They followed him to a wooded

area where Taylor fell from his wounds. Weaver and Shurn

went back to their automobile, then Weaver returned to the

wooded area and shot Taylor again. Taylor dicd from several

gunshot wounds to the head. /bid.

“Weaver and Shurn drove away from the murder scene

at a high rate of speed. Witnesses at the scene immediately

reported the incident to the police, giving a detailed de-

scription of the vehicle. Shortly thereafter, police spotted

the Shurn vehicle and gave chase. Following a collision

during rush hour traffic on Interstate 70, Weaver and Shurn

fled on foot. Shurn was captured at the scene, but Weaver .

ran off toward [an] apartment complex adjacent to the

highway.” /d., at 507-508.

A police officer found Weaver, who was sweating profusely,

running shoeless on a concrete street. Weaver claimed he was

jogging, although he was many miles from home. He also said

he was lost. He was placed under arrest and returned to the

scene of the accident where one of the original pursuing police

officers positively identified him. /d., at 508.

At trial, the jury found Weaver guilty of first-degree murder

and recommended a sentence of death. Weaver filed a motion

for postconviction relief under Missouri Supreme Court Rule

29.15. After an evidentiary hearing, the court denied the

motion. Weaver pursucd a consolidated appeal to the Supreme

Court of Missouri. /d., at 507. That court affirmed his

conviction and sentence and affirmed the denial of post-

conviction relief. /bid. This Court denied certiorari. Weaver

v. Missouri, 519 U. S. 856 (1996). -

Weaver then sought federal habeas corpus relief under 28

U. S. C. §2254. The United States District Court for the

Eastern District of Missouri granted the petition and set aside

the conviction and sentence. Weaver v. Bowersox, No. 4:96-

CV-2220-CAS (ED Mo., Aug. 9, 1999). The United States

Court of Appeals for the Eighth Circuit reversed. Weaver v.

Bowersox, 241 F. 3d 1024 (CA8 2001). On remand, the district

court granted relief as to the penalty phase only on the ground

that Weaver’s due process rights were violated by the prosecu-

tor’s penalty phase closing argument. Weaver v. Bowersox, No.

4:96-CV-2220-CAS (ED Mo., May 7, 2003). The Court of

Appeals affirmed the district court’s judgment in a 2-1 deci-

sion. Weaver v. Bowersox, 438 F. 3d 832 (CA8 2006). On

May 31, 2006, the Court of Appeals denicd a petition for

rehearing. That court also denied, in a 5-5 decision, a petition

for rehearing en banc. This Court granted the state’s petition

for writ of certiorari on December 7, 2006, Roper v. Weaver,

127 S. Ct. 763, 166 L. Ed. 2d 590 (2006), and denied the

defendant’s cross-petition on December 11. Weaver v. Roper,

No. 06-7089.

SUMMARY OF ARGUMENT

The United States Court of Appeals for the Eighth Circuit

affirmed the issuance of a writ of habeas corpus in a case in

which that court conceded that AEDPA’s limitations ap-

ply—and then promptly ignored them. As we argue—and the

Eighth Circuit acknowledged although the Missouri Supreme

Court addressed Weaver’s claims “in a conclusory fashion,”

that review was “sufficient to bring the case under AEDPA.”

Weaver v. Bowersox, 438 F. 3d 832, 838 (CA8 2006).

Once AEDPA applies, as that selfsame statute makes clear,

the writ of habeas corpus may not issuc unless that state court

adjudication “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States.” 28 U.S. C. §2254(d)(1).

As this Court recently held in Carey v. Musladin, 549 U.S.

__, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006), the words “as

determined by the Supreme Court of the United States” refer to

United States Supreme Court ho/dings on the relevant issue.

Id., 127 S. Ct., at 653, 166 L. Ed. 2d, at 487. The Eighth

Circuit did not comply with this requirement, relying instead on

one of its own decisions. That decision in turn referenced four

rulings of this Court, which, though concerned with allegedly

improper conduct by prosecutors, nevertheless do not provide

clearly established law applicable to Weaver. A close examina-

tion of these four cases reveals that they are not similar enough

or specific enough to qualify as controlling, clearly established

federal law. This conclusion is given additional support by an

examination of analogous lower federal and state court deci-

sions. That case law strongly suggests that there is no clear

guidance from this Court on these particular issues.

Since the state court ruling was not incompatible with

clearly established federal law, as determined by this Court, the

Court of Appeals exceeded its authority under AEDPA when it

approved the issuance of the writ of habeas corpus.

ARGUMENT

In 1996, Congress enacted the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). That Act placed new

restrictions on the authority of federal courts to grant writs of

habeas corpus to state prisoners. The relevant provision, 28

U.S.C. § 2254(d)(1), prohibits a federal court from granting an

application for a writ of habeas corpus with respect to a claim

adjudicated on the merits in state court unless that adjudication

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.”

By its terms, AEDPA limits the issuance of federal habeas

writs to a subset of contested state court interpretations of

federal law. Erroncous interpretations that are not contrary to

Supreme Court rulings, and are not unreasonable applications

thereof, are beyond the reach of federal habeas courts. It is

clear that Congress sought a compromise between the need for

uniformity of federal law and the desire for respect for state

court decisions involving the administration of criminal justice,

a ficld in which state courts play the predominant role. If this

compromise is to be maintained, and the will of Congress

realized, it is imperative that AEDPA’s strictures on federal

habeas courts be given full and generous effect.

Death penalty cases provide an additional reason for

preserving and perpetuating the AEDPA compromise—the

interest in finality. Congress was well aware, as the title of the

Act indicates, that capital cases were being delayed to the point

that public confidence in the criminal justice system was

jeopardized. Repeated and protracted habeas corpus litigation

contributed significantly to this problem. Before AEDPA was

approved, an influential committee headed by the late Supreme

Court Justice Lewis F. Powell, Jr., declared:

“(O]ur present system of multi-layered state and federal

appeal and collateral revicw has led to piecemeal and

repetitious litigation, and years of dclay between sentencing

and a judicial resolution as to whether the sentence was

permissible under the law. The resulting lack of finality

undermines public confidence in our criminal justice

system.”

By limiting habeas petitions to only the most clear-cut

misapplications of federal law—those that are contrary to, or

involve an unreasonable application of, clearly established

fedcral law—-Congress unambiguously evinced its intention to

restrict the issuance of these petitions. As this Court has

recognized, “ ‘Congress wished to curb delays, to prevent

“retrials” on federal habeas, and to give effect to state convic-

tions to the extent possible under law.’ Williams v. Taylor,

529 U. S. 362, 404 (2000), quoting id., at 386 (opinion of

Stevens, J.).

2. Committee Report and Proposal from the Judicial Conference of the

United States Ad Hoc Committee on Federal Habeas Corpus in Capital

Cases, reprinted at 135 Cong. Rec. 24,694 (1989).

Earlier this term, in Carey v. Musladin, 549 U.S. _, 127

S. Ct. 649, 166 L. Ed. 2d 482 (2006), this Court recognized that

the § 2254(d)(1) restrictions permit the granting of a writ only

when the state court has misapplicd United States Supreme

Court holdings on the relevant issue, as opposed to dicta. See

also Williams, 529 U.S., at 412. Mus/ladin thereby acknowl-

edged the need to establish a liberal interpretation of

§ 2254(d)(1)’s restrictions, and the concomitantly narrow

quthority of the habeas-issuing courts.

The instant case provides another opportunity for this Court

to reaffirm that lower federal courts may not rely exclusively on

their own cases to justify federal habeas petitions subject to

§ 2254(d)(1) limitations, but instead, must find that the state

court ruling is incompatible with relevant United States

Supreme Court holdings. This means only (1) a contrary

decision on materially indistinguishable facts; (2) applying a

standard contrary to a specific rule; or (3) a violation of a

general principle which is so flagrant that it is obviously a

violation. As we will demonstrate, Weaver’s case is factually

distinct from this Court’s cases, none of which covers this

situation, and the deference due state court decisions should

have applied. As Eighth Circuit Judge Bowman said in dissent

on this issue: “None of the Supreme Court cases cited in the

Court’s opinion touches on the distinct claims of prosecutorial

misconduct on which the writ was granted.” Weaver v.

Bowersox, 438 F. 3d 832, 844 (CA8 2006) (Bowman, J.,

concurring in part and dissenting in part).

I. The Supreme Court of Missouri was entitled to

deference under AEDPA when it decided summarily, but

on the merits, that remarks by the prosecutor during the

sentencing phase of a capital trial were permissible.

William Weaver was found guilty and sentenced to death

for the murder of Charles Taylor, a killing stemming from a

dispute among drug dealers and Taylor’s expected testimony in

a federal drug prosecution. The conviction and sentence were

affirmed by the Supreme Court of Missouri. See State v.

Weaver, 912 S. W. 2d 499 (Mo. 1995). In the course of its 24-

page opinion, the state supreme court decided, inter alia, that

the state’s closing arguments during the penalty phase of

Weaver’s capital trial were supported by the evidence and that

the trial court did not abuse its discretion in permitting them.

It also held that the prosecutor’s arguments did not render the

penalty phase of the trial fundamentally unfair. /d., at 513-514.

Subsequently, the United States District Court for the Eastern

District of Missouri granted habeas relief on the grounds that

three different penalty phase remarks of the prosecutor violated

Weaver’s Fourteenth Amendment Due Process rights. Weaver

v. Bowersox, No. 4:96-CV-2220-CAS (ED Mo., May 7, 2003).

The text of those arguments are sct out in the Appendix.

The first of the prosecutor’s comments, the “Innocence

Remark,” identified in the Eighth Circuit opinion as Claim 2E,

concerned the prosecutor’s concession that there is a possibility

that defendant was innocent, followed by his implication that

such a possibility is insufficient to serve as a legal bar to a

death sentence. The second comment, the “Soldicr Analogy,”

identified as 2F, compared the jurors to soldiers in wartime,

suggesting that both were, at times, under a duty to kill. The

third statement, 2M, the “Deterrence Statement,” focused on

the need to protect the community by deterring murderers like

Weaver through the imposition of the death penalty.

A divided three-judge pancl of the Eighth Circuit Court of

Appeals affirmed the issuance of the wnt, holding that while

§ 2254(d)(1) of AEDPA applied to the federal courts in

Weaver's case, it did not bar relief because “there can be no

interpretation of the inflammatory remarks by the prosecutor

that is reasonable under the various applicable United States

Supreme Court precedents.” Weaver v. Bowersox, 438 F. 3d

832, 842 (CA8 2006).

We consider first whether AEDPA is applicable to this

case. There are two issues: whether or not a pre-AEDPA filing

by Weaver affects the application of the statute, and whether or

not the state court sufficiently considered the claims for them

to be treated as “adjudicated on the merits” as that phrase is

used in § 2254(d).

The filing issue presents no serious obstacle to the applica-

bility of AEDPA. Weaver filed his petition for the writ of

habeas corpus on November 12, 1996, which was after April

24, 1996, AEDPA’s effective date. Although Weaver also had

filed a pre-AEDPA habeas petition, that petition had been

dismissed without prejudice for failure to exhaust state reme-

dies. Weaver v. Bowersox, 241 F. 3d 1024, 1029 (CA8 2001).

This Court has held that pre-AEDPA filings by an applicant do

not preclude application of the statute. “[A]n application filed

after AEDPA’s effective date should be reviewed under

AEDPA, even if other filings by that same applicant-—such as,

for example, a request for the appointment of counsel or a

motion for a stay of execution—were presented to a federal

court prior to AEDPA’s effective date.” Woodford v. Garceau,

538 U.S. 202, 207 (2003). AEDPA applies to an appeal filed

after its effective date, even if the petition was filed in the

district court before that date. See Slack v. McDaniel, 529

U. S. 473, 480-482 (2000). AEDPA is applicable to a peti-

tioner’s filing after the statute’s effective date even if he also

filed prior to that date, where the earlier petition was dismissed

for failure to exhaust state remedies. See Weaver v. Bowersox,

241 F. 3d 1024 (CA8 2001); Van Tran v. Lindsey, 212 F. 3d

1143 (CA9 2000), overruled on other grounds, Lockyer v.

Andrade, 538 U.S. 63,71, 75 (2003); Mancuso v. Herbert, 166

F. 3d 97 (CA2 1999). Any other rule would invite an applicant

to evade AEDPA simply by filing prematurcly.

The adjudication-on-the-merits issue is a bit less straightfor-

ward. Section 2254(d) says: “An application for a writ of

habeas corpus on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court

proceedings. . . .” (Emphasis added). Therefore, if a claim

10

was not “adjudicated on the merits” § 2254(d) is inapplicable.

See Canaan v. McBride, 395 F. 3d 376, 382 (CA7 2005);

Fortini v. Murphy, 257 F. 3d 39, 47 (CA1 2001); Hogan v.

Gibson, 197 F. 3d 1297, 1306 (CA10 1999).

The Eighth Circuit correctly held that although the Missouri

Supreme Court addressed Weaver’s claims “in a conclusory

fashion,” that review was “sufficient to bring the case under

AEDPA.” Weaver, 438 F. 3d, at 838. The court cited Brown

v. Luebbers, 371 F. 3d 458, 462 (CA8 2004) (“the ‘summary

nature’ of the discussion of the federal constitutional question

does not preclude application of the AEDPA standard”), James

v. Bowersox, 187 F. 3d 866, 869 (CA8 1999) (the summary

nature of a state court opinion does not affect the federal court’s

decision to apply the AEDPA standard), and Muth v. Frank,

412 F. 3d 808, 815 (CA7 2005) (“AEDPA’s requirement that

a petitioner’s claim be adjudicated on the merits by a state court

is not an entitlement to a well-articulated or even a correct

decision by a state court. In fact, several circuits have held that

a state court need not offer any reasons and summarily dispose

of a petitioner’s claim and that summary disposition would be

an adjudication on the merits”).

However, Circuit Judge Bye, concurring in the result,

concluded that AEDPA is inapplicable because “the state court

discusses and analyzes only three of the six” claims raised by

Weaver and “ignored Weaver’s most compelling constitutional

claim.” Weaver, 438 F. 3d, at 843 (Bye, J., concurring in the

result).

The Supreme Court of Missouri addressed the relevant

issues as follows. First, at the beginning of Part IV of the

opinion, the court presented an overview of the defendant’s

prosecutorial misconduct claims.

“Defendant argues that the state’s closing arguments

during both the guilt and penalty phases of the trial were

erroneous and further that counsel was ineffective in failing

to object to some of the improper arguments. A review of

11

the record discloses that defense counsel objected vehe-

mently to almost all the arguments complained of here and

that several of the objections were sustained, followed by

curative instructions to the jury. The trial court has consid-

erable discretion in allowing argument of counsel, and the

rulings are reversible only for abuse of discretion where

argument is plainly unwarranted. State v. Armbruster, 641

S. W. 2d 763, 766 (Mo. 1982). Our review of the argu-

ments discloses neither error in permitting the arguments

nor ineffective assistance of counsel in failing to object.”

Weaver, 912 S. W. 2d, at 512.

The above-quoted statement of the state supreme court is,

in and of itself, sufficient to constitute an adjudication on the

merits of Weaver’s prosecutorial misconduct claims. First, the

court made clear that it was ruling on all of the prosecutorial

argument claims. In a reference to the totality of defendant’s

claims, the court noted that defense counsel “objected vehe-

mently to almost all the arguments complained of here.” /bid.

In addition, the court’s statement that it made a “review of the

arguments” clearly referred to all of defendant’s claims

respecting allegedly improper statements by the prosecutor.

Ibid. Contrary to Judge Bye’s assertion, there is no requirement

that the state court discuss and analyze cach subclaim individu-

ally. Cf. Clemons v. Mississippi, 494 U. S. 738, 747-748, n. 3

(1990) (an appellate court may implicitly reject litigants’

arguments by refusing to address them). A state court may

collectively address the multiple components of a single legal

claim, and, as long as it reaches the merits of the issue, each

component should be considered adjudicated on the merits for

the purposes of §2254(d). Consequently, the state court’s

discussion of “the state’s closing arguments during both the

guilt and penalty phases of the trial,” Weaver, 912 S. W. 2d, at

512, was sufficient to serve as adjudication on the merits of

each prosecutorial misconduct claim.

Second, after reviewing in detail what it probably consid-

ered the most meritorious of defendant’s prosecutorial misstate-

12

ment claims (Parts !V-A and IV-B of the opinion), the Missouri

Supreme Court presented in Part 1V-C of the opinion a scparate

analysis of the prosecutor’s statements at the sentencing

hearing.

“Lastly, Weaver puts forth a collection of allegedly

improper arguments made by the state during the punish-

ment phase, including the complaint that the prosecutor

argucd matters outside the evidence that lacked evidentiary

support. The prosecutor argued that had Weaver not run

out of bullets he would have shot the arresting officer. He

argued that if a prosccution witness had been out jogging a

short while after the crime Weaver would have also shot

that witness. Finally, he argued that the death penalty

would be a deterrent. Our review of the penalty phase

arguments discloses that these arguments are reasonable.

The fact that the crime had been planned for the purpose of

killing a witness and for the purpose of advancing what was

apparently a very violent drug enterprise, permits an

inference that the defendant had a high propensity for

violent conduct in the future. The claim that the trial court

abused its discretion in permitting the argument is without

merit. The point is denied.” Weaver, 912 S. W. 2d, at 514.

It is abundantly clear that the court was referring to all of

these claims collectively, as it speaks of “a collection of

allegedly improper arguments made by the state during the

punishment phase,” followed by its finding that “these argu-

ments are reasonable.” /bid. Clearly, the court felt that cach

individual argument was reasonable. Therefore, each claim

should be considered adjudicated on the merits.

Furthermore, it is not apparent that the state court actually

failed to single out for review the subclaim that Judge Bye

appears to have thought most compelling. Judge Bye identified

prosccutor’s statement 2M as the “War on Drugs” claim, and

asserted that the Missouri court “ignored” it. Weaver, 438

F. 3d, at 843 (Bye, J., concurring in the result). However, that

prosecutorial statement might just as convincingly be identified

13

as the “Deterrence Statement” because it refers four different

times to the need for a death sentence in order to achieve

general deterrence.’ The Missouri Supreme Court explicitly

approved of the deterrence argument: “Finally, he argued that

the death penalty would be a deterrent. Our review of the

penalty phase arguments discloses that these arguments are

reasonable.” Weaver, 912 S. W. 2d, at 514. It is plausible to

consider this a reference to Claim 2M. Therefore, one cannot

say with certainty that the Missouri Supreme Court “ignored”

defendant’s argument.

Ultimately, however, whether the state court explicitly

resolved the 2M claim or decided it as part of a bloc of similar

claims is of no moment insofar as AEDPA is concerned. If a

state court, as the Missouri Supreme Court did, adjudicates a

claim on the merits, then § 2254(d) is applicable. State courts

are entitled to deference simply because they adjudicated the

relevant claim on the merits, whether or not they “discussed or

analyzed” the issue. There is neither a qualitative nor a

quantitative test for state court opinions. Sce Ryan v. Miller,

303 F. 3d 231 (CA2 2002) (state court’s failure to specifically

address habeas applicant’s Confrontation Clause challenge does

not obviate deferential revicw where the court made a blanket

statement that defendant’s remaining contentions were either

unpreserved for appellate review or without merit). “A state

court need not analyze cach individual claim or cite federal law

in order to adjudicate a claim, so long as it states it is disposing

of the claim on the merits, and it issues a judgment.” /d., at

246. The Eighth Circuit majority was right, and Judge Bye was

in error.

3. Four statements of the prosecutor either expressly or impliedly refer to

general deterrence, the theory that punishing offenders discourages

crime by others. These remarks are identified as Claim 2M. See Weaver,

438 F. 3d, at 836-837. See Appendix, the paragraph on App. 1-App. 2,

the paragraph on App. 2-App. 3, and the first and second full

paragraphs on App. 3.

14

In sum, where a state court decides on the merits a bloc of

similar claims—here, numerous allegedly improper prosccuto-

rial arguments—without separately discussing each subclaim,

it may be said to adjudicate cach subclaim on the merits for

§ 2254(d) purposes.

ll. The Eighth Circuit Court of Appeals exceeded its

authority under AEDPA when it affirmed the issuance of

a writ of habeas corpus for prosecutorial argument issues

that are neither materially indistinguishable from a

Supreme Court precedent, governed by a specific rule

in Supreme Court precedent, nor an obvious and

egregious violation of general principle.

In Carey v. Musladin, 549 U.S. _, 127 S. Ct. 649, 166

L. Ed. 2d 482 (2006), this Court reiterated that the phrase

“clearly established Federal law” in §2254(d)(1), the

Antiterrorism and Effective Death Penalty Act of 1996,

“ ‘refers to the holdings, as opposed to the dicta, of this Court’s

decisions as of the time of the relevant state-court decision.’ ”

Id., 127 S. Ct., at 653, 166 L. Ed. 2d, at 487, quoting Williams

v. Taylor, 529 U.S. 362,412 (2000). Therefore, federal habeas

relicf was properly granted in Weaver’s case only if the

Missouri Supreme Court’s decision was contrary to or involved

an unreasonable application of this Court’s applicable holdings.

Where the clearly established law is only a broad principle,

it would take an extreme case for a state court decision to be an

unreasonable application. In Lockyer v. Andrade, 538 U.S. 63,

72-73 (2003), the only clearly established law was that sen-

tences cannot be grossly disproportionate. Given the vagueness

and gencrality of this principle, it would provide a governing

standard only in “ ‘exceedingly rare’ and ‘extreme’ case[s].”

Id., at 73. None of this Court’s modern habeas cases provide

a real-life example of conduct so outrageous that it constitutes

a clear violation of a general principle. In the related qualified

immunity area, Hope v. Pelzer, 536 U. S. 730, 741 (2002)

15

notes that tying a prisoner to a hitching post all day, shirtless,

in the Alabama sun is arguably such a violation. Sec also Brief

for Criminal Justice Legal Foundation as Amicus Curiae in

Carey v. Musladin, No. 05-785, pp. 7-8. Whatever onc thinks

of the prosecutor argument in the present case, it does not come

remotely close to the kind of extreme misconduct that would

violate clearly established law without a specific rule or

precedent governing the situation.

The key question, then, is how specific or how factually

similar must a ruling of this Court be to serve as an applicable

holding? See Lockyer, 538 U. S., at 76; Yarborough v.

Alvarado, 541 U. S. 652, 664-666 (2004). In Musladin, this

Court found that none of its prior holdings required the state

court to apply to the context in Mus/ladin the legal test devel-

oped in a different context. Consequently, the state court’s

decision was held not contrary to or an unreasonable applica-

tion of clearly established federal law.

Musladin involved a display of the victim’s image on

buttons worn by the murder victim’s family during Musladin’s

trial. The state court held that this conduct did not deny the

right to a fair trial. The Court of Appeals for the Ninth Circuit

reversed the United States District Court and remanded for

issuance of the writ of habeas corpus. See 127 S. Ct., at 651-

652, 166 L. Ed. 2d, at 486-487. According to the Court of

Appeals, this Court’s decisions in Estelle v. Williams, 425 U.S.

501 (1976), and Holbrook v. Flynn, 475 U. S. 560 (1986),

clearly established a rule of federal law—the test for inherent

prejudice—applicable to Musladin’s case.

In Estelle, this Court stated that “the State cannot, consis-

tently with the Fourteenth Amendment, compel an accused to

stand trial before a jury while dressed in identifiable prison

clothes,” but held that defendant waived his nghts by failing to

object at trial. 425 U.S., at 512. In Flynn, this Court held that

the presence of four uniformed state troopers immediately

behind the defendant at trial was not so inherently prejudicial

that it denied the defendant a fair trial. The Flynn Court

16

announced that the test is “whether an unacceptable risk is

presented of impermissible factors coming into play.” 475

U. S., at 570 (internal quotation marks deleted).

Since both Estelle and Flynn concerned displays during a

criminal trial that arguably prejudiced the defendant, it was

plausible to conclude, as the Ninth Circuit did, that the buttons

displayed in Musladin implicated the Flynn test. Nonetheless,

this Court distinguished Estelle and Flynn and held that no

holding of this Court required application of their rules to the

Musladin case. As this Court explained, Estelle and Flynn

involved state-sponsored courtroom practices, not spectator

conduct, and “the effect on a defendant’s fair-trial rights of the

spectator conduct to which Musladin objects is an open

question in our jurisprudence.” 127 S. Ct., at 653, 266

L. Ed. 2d, at 488. Crucially, Justice Thomas, writing for this

Court, added that “although the Court articulated the test for

inherent prejudice that applies to state conduct in Williams and

Flynn, we have never applied that test to spectators’ conduct.”

Id., 127 S. Ct., at 653-654, 166 L. Ed. 2d, at 488.

Thus, the message of Mus/adin is that where this Court has

applied a Icgal test for a particular situation, then that Supreme

Court decision should not be considered “clearly established

Federal law” with respect to a different situation where a

different standard may arguably be appropriate. In addition,

where the facts of the habeas petitioner’s case are “materially

indistinguishable from a decision of this Court,” Williams, 529

U. S., at 406, that Supreme Court precedent will constitute

clearly established federal law for AEDPA’s purposes. For the

same reasons discussed below, the facts in Weaver’s case are

matcrially distinguishable from the relevant United States

Supreme Court precedents.

In its Weaver ruling, the Eighth Circuit Court of Ap-

peals_—like the Ninth Circuit in Mus/adin—relied on its own

case law to establish the existence of “clearly established

Federal law.” Weaver, 438 F. 3d, at 839, citing Copeland v.

Washington, 232 F. 3d 969, 974 (CA8 2000). The relicd-on

17

Eighth Circuit case, Copeland v. Washington, 232 F. 3d 969

(CA8 2000), in turn held that certain United States Supreme

Court decisions on penalty phase as well as guilt phase closing

arguments were sufficient to satisfy AEDPA’s “clearly estab-

lished Federal law” requirement. /d., at 973-974. The deci-

sions cited were Caldwell v. Mississippi, 472 U.S. 320 (1985),

and Romano v. Oklahoma, 512 U. S. 1 (1994), for penalty

phase issues, and Donnelly v. DeChristoforo, 416 U. S. 637

(1974), and Darden v. Wainwright, 477 U. S. 168 (1986), for

guilt phase claims. It is truc that all of these cases, like Weaver,

concern allegedly improper conduct by prosecutors—but that

is where the similarity ends.

Donnelly and Darden do not provide clearly established law

applicable to Weaver because, unlike Weaver, they do not

concern the sentencing stage of a death penalty case. Undoubt-

edly, the law and the issues arising out of the penalty phase of

a Capital case are significantly different from those associated

with the guilt-determination phase. See Ca/dwell, 472 U. S., at

329 (applying the Eighth Amendment to prosecutorial remarks

in the sentencing phase of a capital case because “ ‘the qualita-

tive difference of death from all other punishments requires a

correspondingly greater degree of scrutiny of the capital

sentencing determination’ ”), quoting California v. Ramos, 463

U. S. 992, 998-999 (1983). The Eighth Circuit, in Copeland,

acknowledged this difference, 232 F. 3d, at 974, n. 2, but

suggested that the greater scrutiny required in the sentencing

phase case provided additional support for issuance of the writ

of habeas corpus. To the contrary, however, where AEDPA

applies, the issuance of the writ turns not on the need for, in the

Court of Appeals’ words, “a more searching review,” ibid., but

rather on the existence of clearly applicable United States

Supreme Court precedent.

Darden does not provide that precedent. The relevant issuc

in Darden, as this Court put it, was whether “the prosecution’s

closing argument at the guilt-innocence stage of the trial

rendered his conviction fundamentally unfair and deprived the

18

sentencing determination of the reliability that the Eighth

Amendment requires.” 477 U. S., at 178-179. The challenged

remarks, as described by this Court, were fouriwid: (1) The

prosecutor “place[d] some of the blame for the crime on the

Division of Corrections, because Darden was on weckend

furlough from a prison sentence when the crime occurred.” /d.,

at 179-180. (2) “Some comments implied that the death

penalty would be the only guarantee against a future similar

act.” Jd., at 180. (3) Other comments “incorporated the

defense’s use of the word ‘animal.’ ” Jbid. (4) “Prosecutor

McDaniel made several offensive comments reflecting an

emotional reaction to the case.” /bid.

First of all, none of these prosecutorial remarks is similar to

the challenged comments in Weaver, i.e., to the “Innocence

Remark,” the “Soldicr Analogy,” or the “Deterrence State-

ment.” Consequently, the Darden holding would have afforded

little guidance to the state court. Of course, the remarks need

not be virtually identical for the Supreme Court precedent to

provide clearly established law, but where they are so com-

pletely different that it will be difficult fer a state court to be

confident that its ruling is consistent with this Court’s case law,

AEDPA mandates deference to the state court’s ruling.

Second, the primary question in Darden—whether the

remarks “rendered his conviction fundamentally unfair,” 477

U. S., at 178—is a very different question from that raised by

Weaver, viz., whether the sentence was invalid. This is a crucial

distinction. The factors that enter into the death sentencing

decision are very different from those that affect the guilt or

innocence determination. For instance, the jury’s judgment

about the “character and record of the individual offender,”

Woodson v. North Carolina, 428 U. S. 280, 304 (1976), is

relevant to sentence, but not usually to guilt. Morcover, the

focus of the closing remarks at the sentencing, as opposed to

the guilt phasc, is apt to reflect this difference. Consequently,

that which renders a conviction fundamentally unfair may not

affect a death sentence, and vice versa.

19

Third, the other Darden issue—-whether the prosecutor’s

remarks violated the Caldwell principle by depriving the

sentencing determination of the reliability that the Eighth

Amendment requires—implicates a distinctive legal theory, one

involving the affirmative misleading of the jury regarding its

role in the sentencing process. See Romano, 512 U. S., at 9

(holding that admission of evidence that a capital defendant

already had been sentenced to death in another case did not

violate the Caldwell principle). The Darden Court held that

there was no Caldwell violation since “the comments were

made at the guilt-innocence stage of triai, greatly reducing the

chance that they had any effect at all on sentencing.” 477 U.S.,

at 183,n. 15. Thus, with respect to the Caldwell issuc, both the

facts and the legal theory of Darden differentiate it from

Weaver. The Caldwell portion of the Darden decision is of no

relevance to Weaver's due process claim respecting the prosecu-

tor’s penalty phase remarks.

In addition to its distinguishable facts and distinct context,

Darden did not establish any specific rule relevant to this case

because Darden held that there was no violation of due process

in that case. The only standard stated is the very general

Donnelly rule, see 477 U. S., at 181. A case holding that a

certain set of facts does not violate a very gencral standard does

little toward establishing a rule that other facts not before the

Court would violate that standard.

In short, this Court’s holding in Darden is materially

distinguishable from Weaver’s case, arose in a different

context, and applied only a very gencral standard. It did not

create any “clearly established Federal law” to which the state

court decision could be contrary.

If Darden is far removed from Weaver, Donnelly v.

DeChristoforo, 416 U.S. 637 (1974), another case relied on by

the Eighth Circuit, is even more so. Donnelly involved

20

prosecutorial closing remarks in a pre-Furman* unitary capital

trial in which the jury found the defendant guilty of first-degree

murder and recommended against the death penalty. After

defendant’s jointly tried codefendant pleaded guilty, the

prosecutor, in his summation, remarked to the jury, in reference

to defendant and his counsel: “They said they hope that you

find him not guilty. I quite frankly think that they hope that

you find him guilty of something a little less than first-degree

murder.” /d., at 640. In response, the trial judge later gave a

curative instruction. The issuc, as described by this Court, was

whether the remark “so infected the trial with unfairness as to

make the resulting conviction a denial of duc process.” /d., at

643. This Court held that, since the remark was ambiguous,

was but one moment in an extended trial, and was followed by

specific disapproving instructions, no due process violation

occurred. /d., at 645.

Donnelly is markedly different from Weaver. First, the

remarks at issue are quite dissimilar. The Donnelly prosecutor

imputed certain beliefs to the defendant and his attorney, which

is a far cry from the “Innocence Remark,” the “Soldicr Anal-

ogy,” or the “Deterrence Statement” in Weaver. Second, there

was no separate sentencing phasc in the Donnelly case, whereas

Weaver had a bifurcated trial only the second stage of which is

at issue. Third, the Donnelly issue concerned the unfairness of

the conviction, not, as in Weaver, the sentence. Fourth, and

finally, unlike Weaver, there was no death sentence in Donnel-

ly, as defendant was sentenced to life imprisonment. All told,

Donnelly cannot be considered clearly established federal law

with respect to Weaver’s very different case.

To support its clearly-established-federal-law contention the

Eighth Circuit also cited Ca/dwell and Romano v. Oklahoma.

We have already noted, above, the significant differences

between a Ca/dwell-Eighth Amendment claim and a due

4. Furman v. Georgia, 408 U.S. 238 (1972).

21

process claim. This Court, in Sawyer v. Smith, 497 U.S. 227

(1990), stressed that very difference:

“Rather than focusing on the prejudice to the defendant

that must be shown to establish a Donnelly [duc process]

violation, our concern in Caldwell was with the ‘unaccept-

able risk’ that misleading remarks could affect the reliabil-

ity of the sentence. ... Caldwell must therefore be read as

providing an additional measure of protection against error,

beyond that afforded by Donnelly, in the special context of

capital sentencing.” /d., at 244 (citation omitted).

A due process claim asks whether the alleged misconduct

so infected the proceeding with unfairness as to make the result

a denial of due process. See Donnelly, 416 U. S., at 643.

Caldwell looks to a much different issue: whether the jury was

“affirmatively misled regarding its role in the sentencing

process.” Romano, 512 U.S., at 9. Thus, the Caldwell line of

cases, including, in part, Romano, cannot be considered clearly

established federal law for Weaver’s duc process claims.

Romano addressed both Caldwell and due process issues.

in Romano, the State sought to prove two aggravating circum-

stances (previous conviction of a violent felony and continuing

threat to society) by evidence that defendant had previously

been convicted of first-degree murder and sentenced to death.

Romano argued that evidence of the prior death sentence

deprived the sentencing determination of the reliability that the

Eighth Amendment requires. This Court rejected the Caldwell

claim on the grounds that the death sentence evidence was

neither false nor pertinent to the jury’s role in sentencing.

Romano, 512 U.S., at 9.

Respecting Romano’s duc process claim, this Court,

applying the analytical framework developed in Donnelly,

asked “whether the admission of evidence regarding peti-

tioner’s prior death sentence so infected the sentencing pro-

ceeding with unfairness as to render the jury’s imposition of the

death penalty a demial of duc process.” /d., at 12. The answer

22

was negative, primarily because the trial court’s instructions

“clearly and properly described the jurors’ paramount role in

determining petitioner’s sentence, and they also explicitly

limited the jurors’ consideration of aggravating factors to the

four which the State sought to prove.” /d., at 13. Morcover,

even without the evidence of the prior death sentence, “the jury

had sufficient evidence to justify its conclusion that these four

aggravating circumstances existed.” /bid. Alternatively, this

Court held that no due process violation occurred because “it is

impossible to know how this evidence might have affected the

jury. It seems equally plausible that the evidence could have

made the jurors more inclined to impose a death sentence, or it

could have made them less inclined to do so.” /d., at 14.

While Romano established that the Due Process Clause of

the Fourteenth Amendment applies to the sentencing phase of

capital trials, it did not establish that the same due proccss

analysis applies to prosecutorial closing remarks in the sentenc-

ing hearing—the issue in Weaver. The Romano analysis would

not have resolved the Weaver issue. Instructing the jury on its

paramount role in determining petitioner’s sentence, and

explicitly limiting the jurors’ consideration of aggravating

factors to those which the State sought to prove, would not

affect the prejudice to defendant, if any, caused by the Weaver

prosecutor’s comments. In short, because Romano simply is

not a prosecutorial-closing-remarks case, its facts are so

different from those of Weaver that it cannot be considered

clearly established federal law for Weaver’s duc process claims.

The overall conclusion, therefore, is compelling: none of

the four United States Supreme Court cases cited by the Eighth

Circuit Court of Appeals—neither Ca/dwell, Romano, Donnel-

ly, nor Darden—constitutes “clearly established Federal law”

controlling with respect to Weaver’s prosecutorial remarks

claim. Consequently, the Eighth Circuit acted improperly when

it declined to defer to the Supreme Court of Missouri and

approved the issuance of the writ of habeas corpus.

23

This conclusion gains additional support from the division

in the case law on the issues raised by Weaver’s case. In Carey

v. Musladin, 549 U.S. _, 127 S. Ct. 649, 654, 166 L. Ed. 2d

482, 489 (2006), this Court suggested that divergent treatment

of the relevant claims by lower courts is an indicator of the lack

of guidance from this Court, i.e., the lack of United States

Supreme Court holdings specific enough and factually similar

enough to clearly establish a controlling rule. Such a diver-

gence is evident with respect to the prosecutorial comment

issues in Weaver.

The Eighth Circuit opinion in Weaver sorted the prosecu-

tor’s remarks into five categories:

“(1) an analogy that the role of a juror is like that of a

soldier who must do his or her duty and have the courage to

kill; (2) statements by the prosecutor about his personal

belief in the death penalty; (3) statements that executing

Weaver was necessary to sustain a societal effort as part of

the “war on drugs”; (4) assertions that the prosecutor had a

special position of authority and decided whether to seck

the death penalty; and (5) arguments that were designed to

appeal to the emotions of the jury (culminating in a state-

ment that the jury should ‘kill [Weaver] now’).” 438 F. 3d,

at 840.

We examine some of the case law relevant to each of these

categories.

(1) Although the Eighth Circuit, in Weaver, found that the

soldier analogy “eviscerates the concept of discretion afforded

to a jury as required by the Eighth Amendment,” ibid., the

Eleventh Circuit expressed partial approval of similar remarks.

See Brooks v. Kemp, 762 F. 2d 1383, 1412 (CAI1 1985),

vacated on other grounds, 478 U. S. 1016 (1986) (approving

part of the argument: “the analogy of the death penalty to

killing in a war was appropriate insofar as it implied that

imposing death, while difficult, is at times sanctioned by the

24

state because of compelling reasons (national security or

deterring crime)’).

(2) The Eighth Circuit’s Weaver decision found statements

about the prosecutor’s personal belief in the death penalty

“inappropriate and contrary to a reasoned opinion by the jury.”

438 F. 3d, at 841. By contrast, however, the Ohio Supreme

Court endorsed the practice, noting that “it is difficult for

prosecutors to argue vigorously for the death penalty without

making what might arguably be statements of personal opin-

ion.” State v. Tyler, 50 Ohio St. 3d 24, 41, 553 N. E. 2d 576,

595 (1990).

(3) The Court of Appeals characterized what it called

“Claim 2M” as a “war on drugs” argument, stating that the

prosecutor urged the jury to impose the death penalty in order

to “sustain a societal effort as part of the ‘war on drugs.’ ” 438

F.3d, at 840. With respect, this misrepresents the prosecutor’s

remarks. Four times within the relevant address to the jury the

prosecutor either expressly or impliedly referred to general

deterrence, the theory that punishing offenders discourages

crime by others. See supra, at 13, n. 3. Not once did he

suggest that Weaver should be executed solely because he was

a drug dealer. And, although a few words taken out of context

seem to suggest that the death penalty is needed to fight drug

dealers, the general thrust is that the death penalty is necessary

to protect the community from drug dealers who commit

murder, especially murder for hire. “[T]he message you want

to send to the drug dealers, the dope peddlers and the hit men

they hire to do their dirty deeds . . . has to be death for these

types of people.” /d., at 837 (emphasis added). As then-Justice

5. For instance, the prosecutor said, “This case I guess it’s the one that

just cries out to you to say protect the community. The drug dealers,

they are taking our streets away from us. Are we going to take them

back? Are we going to let them have the streets or are we going to fight

back? If the drug peddlers are going to run our community, then all is

lost. Then there’s no point in having jurors. The death penalty applies

in some cases. It applies in this case.” 438 F. 3d, at 836.

25

Rehnquist, speaking for this Court, cautioned: “a court should

not lightly infer that a prosecutor intends an ambiguous remark

to have its most damaging meaning or that a jury, sitting

through lengthy exhortation, will draw that meaning from the

plethora of less damaging interpretations.” Donnelly, 416

U. S., at 647.

The courts are not in full agreement on the appropriateness

of general deterrence arguments. Some disapprove. See State

v. Rose, 548 A. 2d 1058, 1092 (N.J. 1988); State v. Irick, 762

S. W. 2d 121 (Tenn. 1988) (improper but not reversible error).

Others have sanctioned such comments. Sce Collins v.

Francis, 728 F.2d 1322, 1339-1340 (CAI1 1984); Edwards v.

State, 737 So. 2d 275, 300 (Miss. 1999); Witter v. State, 112

Nev. 908, 924, 921 P. 2d 886, 897 (1996), overruled on other

grounds, Fore v. State, 118 Nev. 330, 45 P. 3d 404 (2002).

(4) This category refers to one passing remark by the

prosecutor which is here set out in full: “I’m the Prosecuting

Attorney in this county, the top law enforcement officer in the

county. I decide in which cases we ask for the death penalty

and in which cases we don’t.” Weaver, 438 F. 3d, at 837. This

was followed immediately by an objection from Weaver’s

counsel. The trial court sustained the objection and instructed

the jury to disregard the statement.

Although courts are divided on the propriety of comments

invoking the prestige of a prosecutor’s office, some of the cases

are distinguishable from Weaver, where the prosecutor merely

stated that he was the “top law enforcement officer” with

responsibility for selecting cases for capital prosecution. This

correct factual statement is different from assertions that imply

that the prosecutor personally approves the death penalty in the

case, or that there are facts outside the evidence that make the

case especially appropriate for the death penalty.

Disapproving but distinguishable cases include New/lon v.

Armontrout, 885 F. 2d 1328 (CA8 1989) (the prosecutor's

emphasis on his authority as the “top law enforcement officer

26

of the County’ combined with other remarks infected the

penalty proceeding with an unfairness that violated due

process), Brooks, 762 F. 2d, at 1410 (discussion of the prosecu-

tor’s practice of secking death only in a few cases during the

past years was improper), and Clark v. Commonwealth, 833

S. W.2d 793 (Ky. 1991) (prosecutor crroncously minimized the

responsibility of the jury for imposing the death sentence by

arguing that the prosecutor’s office infrequently secks the death

penalty and that this was “an extraordinary case as envisioned

by our Legislature” for the death penalty). But see State v.

Knighton, 436 So. 2d 1141, 1154 (La. 1983) (the prosecutor’s

statement that “[i]t’s not every case the District Attorney’s

office seeks the death penalty” did not inflame the jury and

deprive defendant of a fair trial).

(5) This final category consists of arguments characterized

by the Eighth Circuit as “designed to appeal to the emotions of

the jury” and “culminating in a statement that the jury should

‘kill [Weaver] now.’ ” Weaver, 438 F. 3d, at 840. The prosecu-

tor’s actual words were as follows:

“Sometimes killing is not only fair and justified; it’s

right. Sometimes it’s your duty. There are times when you

have to kill in this life and it’s the right thing to do. If

Charles Taylor had been able to get his gun out that day,

would you have said it was right for him to kill Weaver and

Shurn? Of course, you would. It would have been self-

defense. Well, it was right to kill then and it’s right to kill

him now.” /d., at 836.

We do not agree that this argument is designed solely to

appeal to the emotions of the jury as it contains a reasoned

argument comparing a decision to impose a death sentence to

another legally justified killing, viz., killing in self-defense.

Nevertheless, outside of a few Missouri cases, we could find no

case law supporting or disapproving such an argument. See

Newlon v. Armontrout, 885 F. 2d 1328 (CA8 1985) (where the

prosecutor expressed his personal belief in the propriety of the

death penalty, emphasized his position of authority in the

27

county as prosecutor, attempted to associate the defendant with

several well-known mass murderers, appealed to the jurors’

personal fears and emotions, and asked the jurors to “kill” the

defendant, the penalty phase of the trial was, in the totality of

the circumstances, fundamentally unfair); Shurn v. Delo, 177

F. 3d 662 (CA8 1999) (same result where the same prosecutor

gave essentially the same argument that led to reversal of the

death sentence in Newlon).

In conclusion, the case law either is split or inconclusive on

the type of prosecutorial arguments made in Weaver. This

strongly suggests that there is no clearly established law from

this Court on these particular issues. Such evidence, along with

a close examination of the cases from this Court actually cited

by the Eighth Circuit, leads to the conclusion that the Court of

Appeals relied on its own case law along with speculative

inferences about the appropriate legal standards drawn from

related United States Supreme Court cases. This may be sound

legal reasoning in a direct review case. But it is not what

Congress meant when it forbade the granting of a writ of

habeas corpus except for state court decisions that are “contrary

to, or involve[] an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court of the

United States.”

CONCLUSION

The decision of the Court of Appeals for the Eighth Circuit

should be reversed.

January, 2007

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

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APPENDIX

App. |

APPENDIX

The Court of Appeals for the Eighth Circuit quoted three

statements of the prosccutor at issue in this case. Weaver v.

Bowersox, 438 F. 3d 832, 835-837 (CA8 2006). These state-

ments, reproduced below, were identified by the parties as

Claim 2E, Claim 2F, and Claim 2M.

Claim 2E:

So, yeah, is there a possibility he’s innocent? A possibility.

I’m not going to deny that. But that’s not what’s required by

the law and that’s not what we could live by. If that’s required,

nobody would ever be sentenced to die. We wouldn’t have a

death penalty. And, quite frankly, if you don’t sentence him to

die in this case, there’s no point in having a death penalty.

Claim 2F:

Then I'll say what | said earlier. If these facts don’t justify,

don’t cry out for the death penalty, then which facts do? Ifa

cold-blooded hit on behalf of drug scum isn’t enough for the

death penalty, then what facts justify it? I know there’s a

movie, Patton, and in the movic, George Patton was talking to

his troops because the next day they were going to go out in

battle and they were scared as young soldiers. And he’s

explaining to them that I know that some of you are going to get

killed and some of you are going to do some killing tomorrow

morning. And they all knew that. And he was going to try to

encourage them that sometimes you’ve got to kill and some-

times you’ ve got to risk death because it’s right. He said: But

tomorrow when you reach over and put your hand in the pile of

goo that a moment before was your best friend’s face, you'll

know what to do.

Claim 2M:

It strikes right at the heart of our system. You've got to look

beyond William Weaver. This isn’t personal. This is business.

You people represent the entire community. You represent

App. 2

society. You have to give a message here. You have to tell the

Williams Weavers and the Daryl Shurns of the world, and you

have to be willing to look them right in the eye when you do it,

that there’s a point at which we won’t allow you to go. And

when you do, prison’s too good. It’s the death penalty.

Sometimes killing is not only fair and justified; it’s right.

Sometimes it’s your duty. There are times when you have to

kill in this life and it’s the right thing to do. If Charles Taylor

had been able to get his gun out that day, would you have said

it was right for him to kill Weaver and Shur? Of course, you

would. It would have been self-defense. Well, it was right to

kill then and it’s right to kill him now.

This case—-I guess it’s the one that just cries out to you to say

protect the community. The drug dealers, they are taking our

streets away from us. Are we going to take them back? Are

we going to let them have the streets or are we going to fight

back? If the drug peddlers are going to run our community,

then all is lost. Then there’s no point in having jurors. The

death penalty applies in some cases. It applies in this case.

When it comes time after [defense counsel] talks to you, I'll

talk to you again bricfly, and then you’ ve got to go to the jury

room and you've just got to toughen up and do what’s right,

even though it’s going to be tough. You've got to say this is

bigger than William Weaver. It’s not personal; it’s business.

And I’m going to beg you for the entire community and for

society not to spare his life. I’m going to beg you for the nght

message instead of the wrong message. The right message is

life? For an execution? That’s the right message? That’s the

message you want to send to the drug dealers, the dope peddlers

and the hit men they hire to do their dirty deeds: Life in prison

is what you get when we catch you and convict you. Life in

prison? That’s the message you want to send to the scum of the

world? That when we catch you and we're convinced you’re

App. 3

guilty, we’re going to give you life in prison? That’s not the

right message.

The message has to be death for these types of people. That’s

the only message they are going to understand. The one thing

you've got to get into your head, this is far more important than

William Weaver. This case goes far beyond William Weaver.

This touches all the dope peddlers and the murderers in the

world. That’s the message you have to send. It docsn’t just

pertain to William Weaver. It pertains to all of us, the commu-

nity. They are our streets, our neighborhoods, our family. The

message is death, not life. And you’ve just got to geer [sic]

yourself to that.

You’ve got to think beyond William Weaver. As I told you

earlier, this is our worst nightmare. This is socicty’s worst

nightmare. If they could kill witnesses and we don’t execute

them in exchange, then there’s no deterrence. Then the whole

system fails and then chaos reigns and our streets are never safe.

The dope peddlers reign and people like William Weaver do.

It’s bigger than William Weaver. And you've got to have the

guts to do it. I’m the Prosecuting Attorney in this county, the

top law enforcement officer in the county. I decide in which

cases we ask for the death penalty and in which cases we don’t.