Brief filed: 12/07/2007
Roper v. Weaver
United States Supreme Court; Case No. 06-313
Decision below, 438 F.3d 832, cert. granted 12/7/07, argument scheduled 3/21/07.
Since the U.S. Supreme Court has neither held a prosecutor’s penalty phase closing argument to violate due process, nor articulated, in response to a penalty phase claim, what the standard of error and prejudice would be, does a court of appeals exceed its authority under AEDPA (28 U.S.C. §2254(d)(l)) by overturning a capital sentence on the ground that the prosecutor’s penalty phase closing argument was “unfairly inflammatory?”
Brief argues that case can be affirmed alternatively on Eighth Amendment grounds, and AEDPA's standard of review does not apply.
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