                  Cite as: 558 U. S. ____ (2009)             1

                      SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
  WINSTON WEBSTER v. LYNN COOPER, WARDEN
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

            No. 08–10314.   Decided November 30, 2009 


   The motion of petitioner for leave to proceed in forma
pauperis and the petition for a writ of certiorari are
granted. The judgment is vacated and the case is re
manded to the United States Court of Appeals for the
Fifth Circuit for further consideration in light of Jimenez
v. Quarterman, 555 U. S. ___ (2009).
   JUSTICE SCALIA, dissenting.
   Petitioner was convicted and sentenced in Louisiana
state court. His motion for reconsideration of the sentence
was denied on April 15, 2003, and he did not appeal. After
initiating postconviction relief, he filed in the trial court a
“motion to vacate sentence and resentence defendant” on
the ground that he had not had a lawyer present at the
sentencing. That motion was granted, and on June 2,
2004, petitioner was resentenced, this time with a lawyer,
to the same term of incarceration.
   After the conclusion of state postconviction relief, peti
tioner filed a petition in federal court for habeas corpus
under 28 U. S. C. §2254. The District Court thought that
the 1-year statute of limitations provided by
§2244(d)(1)(A) started to run on May 15, 2003, 30 days
after the Louisiana trial court denied petitioner’s motion
for reconsideration of sentence. Accordingly, it concluded
that the statute had expired before petitioner filed his
federal habeas petition. The Fifth Circuit denied a certifi
cate of appealability.
   Our recent decision in Jimenez v. Quarterman, 555 U. S.
___ (2009), held that the statute of limitations of
§2244(d)(1)(A) does not begin to run until the expiration of
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                     SCALIA, J., dissenting

the time allowed to seek direct appeal, even if the state
court allows an out-of-time appeal during state collateral
review. Id., at ___ –___ (slip op., at 8). The parties do not
agree, and it is not clear, whether under Louisiana law
petitioner’s motion to vacate would be regarded as restart
ing the clock for his direct appeal. If so, then the Jimenez
error is obvious; if not, there is no error. Today, without
request by (or even warning to) the parties, the Court
grants certiorari, vacates the Fifth Circuit’s judgment
without determination of the merits, and remands for
further consideration in light of Jimenez.
   I certainly agree that we have the power to GVR “where
an intervening factor has arisen that has a legal bearing
upon the decision.” Lawrence v. Chater, 516 U. S. 163,
191–192 (1996) (SCALIA, J., dissenting). The purpose of
such an “intervening-factor” GVR is to give the court to
which we remand the first opportunity to consider the
factor—in this case a new decision of ours. Though we
have sometimes GVR’d in light of decisions that preceded
the decision vacated, see, e.g., Grier v. United States, 419
U. S. 989 (1974), I have acquiesced in this expansion of
“intervening-factor” GVRs only when (as in Grier) our
decision came so soon before the judgment in question
“that the lower court might have been unaware of it.”
Lawrence, supra, at 181 (SCALIA, J., dissenting). This is
not such a case: We decided Jimenez on January 13, 2009,
more than two months before the Fifth Circuit denied the
certificate. There is thus no basis for regarding that deci
sion as an “intervening” factor—that is, one that the Court
of Appeals did not have before it.
   This is not, of course, the first time the Court has GVR’d
on the basis of a case decided long before the Court of
Appeals ruled, see, e.g., Robinson v. Story, 469 U. S. 1081
(1984) (three months), nor the first time I have protested,
see Lawrence, supra, at 184 (SCALIA, J., dissenting) (more
than a year). This practice has created a new mode of
                 Cite as: 558 U. S. ____ (2009)           3

                     SCALIA, J., dissenting

disposition, a sort of ersatz summary reversal. We do not
say that the judgment below was wrong, but since we
suspect that it may be wrong and do not want to waste our
time figuring it out, we instruct the Court of Appeals to do
the job again, with a particular issue prominently in mind.
   It surely suggests something is amiss that this case
would be over, and petitioner would be worse off, if he had
asked us to reverse the judgment below on the basis of
Jimenez. Since he did not argue that ground to the Court
of Appeals, and since that court did not address it, we
would almost certainly deny certiorari. See Adarand
Constructors, Inc. v. Mineta, 534 U. S. 103, 108–109 (2001)
(per curiam) (dismissing a writ as improvidently granted
because the question at issue was not raised or considered
below). Have we established a new system in which a
party’s repetition before this Court of his failure below
(here, the failure to invoke Jimenez) cures—and causes us
to reward—his earlier failure? Or perhaps we are develop
ing a new system in which all arguably valid points not
raised and not discussed below—whether or not belatedly
raised here—will be sent back for a redo by the Court of
Appeals. And if we can apply this failure-friendly practice
to a neglected precedent two months old, there is no rea
son in principle not to apply it to a neglected precedent
two years old.
   In my view we have no power to set aside the duly re
corded judgments of lower courts unless we find them to
be in error, or unless they are cast in doubt by a factor
arising after they were rendered. The GVR for considera
tion of a day’s old Supreme Court case is already a techni
cal violation of sound practice and should not be extended
further. Since we review judgments rather than opinions,
a lower court’s failure to discuss a pre-existing factor it
should have discussed is no basis for reversal. Once we
disregard the logic (and the attendant limits) of “interven
ing-factor” GVRs, they metastasize into today’s monster.
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                   SCALIA, J., dissenting

We should at least give it a new and honest name—not
GVR, but perhaps SRMEOPR: Summary Remand for a
More Extensive Opinion than Petitioner Requested. If the
acronym is ugly, so is the monster.
