Page:Bobby James Moore v. Texas.pdf/14

Rh below, pronounce the standard that we failed to provide in Moore, and remand for the state court to apply that standard. The Court’s decision, instead, to issue a summary reversal belies our role as “a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).

The Court’s foray into factfinding is an unsound departure from our usual practice. The error in this litigation was not the state court’s decision on remand but our own failure to provide a coherent rule of decision in Moore. I would deny the petition for a writ of certiorari. I certainly would not summarily reverse and make our own finding of fact without even giving the State the opportunity to brief and argue the question. I therefore respectfully dissent.