Cert grants noted today. The questions presented are noted below. Two potentially present rather important unresolved habeas corpus related questions. Roper v. Weaver is a capital case about whether inflammatory closings by a prosecutor are cognizable on federal habeas review. I should also note there is a very substantial Article III question that the Court will either have to deal with now, or in a short-order in a future cert grant, relating to the constitutionality of the AEDPA should the Missouri's statutory construction argument be successful in Weaver. [For an outline of the AEDPA problem see Joseph Brunner's "Negating Precedent and (Selectively) Suspending Stare Decisis: AEDPA and Problems for the Article III Hierarchy." University of Cincinnati Law Review, Vol. 75, Fall 2006 Available at SSRN: http://ssrn.com/abstract=946132]. The question in Weaver is:

Since this 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 28 U.S.C. §2254(d)(1) by overturning a capital sentence on the ground that the prosecutor’s penalty phase closing argument was “unfairly inflammatory?”

Fry v. Plier is the second cert grant out of the Ninth Circuit. Fry was denied the opportunity to place third party guilty before a jury. The Court does not grant cert on whether on these facts the exclusion of third party guilt was improper, assumedly concluding that the exclusion of third party guilt was error. The question in Fry, despite the SCOTUSBlog's protests to the contrary, is how much does evidence of innocence matter on federal habeas corpus where the state court's didn't reach whether the error was harmless.

If constitutional error in a state trial is not recognized by the judiciary until the case ends up in federal court under 28 U.S.C. § 2254, is the prejudicial impact of the error assessed under the standard set forth in Chapman v. California, 386 U.S. 18 (1967), or that enunciated in Brecht v. Abrahamson, 507 U.S. 619 (1993)? Does it matter which harmless error standard is employed? And, if the Brecht standard applies, does the petitioner or the State bear the burden of persuasion on the question of prejudice?

The final criminal case is Bowles v. Russell. That case, according to the SCOTUSBlog , tests whether a federal appeals court acting on its own may dismiss as too late an appeal that a District Court had authorized, out of the usual time limits but after the District Court had reopened the appeal time. Note the SCOTUSBlog notes the Court also granted cert in Leegin Creative Leather Products v. PSKS Inc. (a civil antitrust case) on the antitrust standard to be used when a product maker sets a price floor on its products when sold at retail & Credit Suisse First Boston v. Billing, et al. (a civil antitrust case) on whether the aftermarket trading in newly issued stocks is a field of economic activity immune to antitrust challenge due to it being closely regulated by the SEC & other entities.