# Amicus Curiae Brief — Roper v. Weaver

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0292%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 550 U.S. 598

## Text

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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0292%3A06. Public record. Not legal advice.