OCTOBER TERM, 1999
Syllabus
RAMDASS
v. ANGELONE, DIRECTOR, VIRGINIA DEPARTMENT OF
CORRECTIONS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 99-7000. Argued April 18, 2000-Decided June 12, 2000
Petitioner Ramdass was sentenced to death in Virginia for the
murder of Mohammed Kayani. Under Virginia law, a conviction does
not become final until the jury returns a verdict and, some time
thereafter, the judge enters a final judgment of conviction. At the
time of the Kayani sentencing trial, a final judgment had been
entered against Ramdass for an armed robbery at a Pizza Hut
restaurant and a jury had found him guilty of an armed robbery at a
Domino's Pizza restaurant, but no final judgment had been entered.
The prosecutor argued future dangerousness at the Kayani sentencing
trial, claiming that Ramdass would commit further violent crimes if
released. The jury recommended death. After final judgment was
entered on the Domino's conviction, the Kayani judge held a hearing
to consider whether to impose the recommended sentence. Arguing for
a life sentence, Ramdass claimed that his prior convictions made
him ineligible for parole under Virginia's three-strikes law, which
denies parole to a person convicted of three separate felony
offenses of murder, rape, or armed robbery, which were not part of
a common act, transaction, or scheme. The court sentenced Ramdass
to death, and the Virginia Supreme Court affirmed. On remand from
this Court, the Virginia Supreme Court again affirmed the sentence,
declining to apply the holding of
Simmons v.
South
Carolina, 512 U.
S. 154, that a jury considering imposing death should be told
if the defendant is parole ineligible under state law. The court
concluded that Ramdass was not parole ineligible when the jury was
considering his sentence because the Domino's crime, in which no
final judgment had been entered, did not count as a conviction for
purposes of the three-strikes law. Ultimately, Ramdass sought
federal habeas relief. The District Court granted his petition, but
the Court of Appeals reversed.
Held: The judgment is affirmed.
187
F.3d 396, affirmed.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE SCALIA,
and JUSTICE THOMAS, concluded that Ramdass was not entitled to a
jury instruction on parole ineligibility under Virginia's
three-strikes law. Pp.165-178.
157
(a) Whether Ramdass may obtain relief under
Simmons is
governed by the habeas corpus statute, 28 U. S. C. § 2254(d)(1),
which forbids relief unless a state-court adjudication of a federal
claim is contrary to, or an unreasonable application of, clearly
established federal law as determined by this Court. The Virginia
Supreme Court's ruling here was neither contrary to
Simmons
nor an unreasonable application of its rationale. Pp. 165-166.
(b)
Simmons created a workable rule. The
parole-ineligibility instruction is required only when, assuming
the jury fixes a life sentence, the defendant is ineligible for
parole under state law. The instruction was required in
Simmons because it was legally accurate. However, that is
not the case here, for the Virginia Supreme Court's authoritative
determination is that Ramdass was not parole ineligible when the
jury considered his sentence. Material differences exist between
this case and
Simmons: The
Simmons defendant had
conclusively established his parole ineligibility at the time of
sentencing and Ramdass had not; a sentence had been imposed for the
Simmons defendant's prior conviction and he pleaded guilty,
while the Domino's case was tried to a jury and no sentence had
been imposed; and the grounds for challenging a guilty plea in the
Simmons defendant's State are limited. Ramdass' additional
attempts to equate his case with
Simmons do not refute the
critical point that he was not parole ineligible as a matter of
state law at the time of his sentencing trial. Pp. 166-169.
(c) Extending
Simmons to cover situations where it looks
like a defendant will turn out to be parole ineligible is neither
necessary nor workable, and the Virginia Supreme Court was not
unreasonable in refusing to do so. Doing so would require courts to
evaluate the probability of future events in cases where a
three-strikes law is the issue. The States are entitled to some
latitude in this field, for the admissibility of evidence at
capital sentencing is an issue left to them, subject to federal
requirements. Extending
Simmons would also give rise to
litigation on a peripheral point, since parole eligibility may be
only indirectly related to the circumstances of the crime being
considered and is of uncertain materiality. The State is entitled
to some deference in determining the best reference point for
making the ineligibility determination. Virginia's rule using
judgment in the Domino's case to determine parole ineligibility is
not arbitrary by virtue of Virginia's also allowing the prosecutor
to introduce evidence of Ramdass' unadjudicated prior bad acts to
show future dangerousness. Public opinion polls showing the likely
effect of parole ineligibility on jury verdicts cast no doubt upon
the State's rule. Ramdass' claim is based on the contention that it
is inevitable that a judgment of conviction would be entered for
his Domino's crime, but it is a well-established practice for
Virginia
158
Syllabus
courts to consider and grant post-trial motions to set aside
jury verdicts. Ramdass' time to file such a motion in the Domino's
case had not expired when the jury was deliberating the Kayani
sentence. Ramdass complains that using the entry of judgment rather
than the jury verdict to determine finality is arbitrary because
the availability of postjudgment relief renders uncertain the
judgment's finality and reliability. However, States may take
different approaches, and a judgment is the usual measure of
finality in the trial court. Ramdass' conduct in this litigation
confirms the conclusion reached here. He did not indicate at trial
that he thought he would never be paroled or mention the
threestrikes law at trial, and it appears he did not argue that his
parole ineligibility should have been determined based on the date
of the Domino's verdict until the Virginia Supreme Court declared
that another one of his convictions did not count as a strike.
Pp.169-177.
(d) State courts remain free to adopt rules that go beyond the
Constitution's minimum requirements. In fact, Virginia allows a
Simmons instruction even where future dangerousness is not
at issue; and since it has also eliminated parole for capital
defendants sentenced to life in prison, all capital defendants now
receive the instruction. Pp.177-178.
JUSTICE O'CONNOR agreed that Ramdass is not entitled to habeas
relief. The standard of review applicable in federal habeas cases
is narrower than that applicable on direct review. Whether a
defendant is entitled to inform the jury that he is parole
ineligible is ultimately a federal law question, but this Court
looks to state law to determine the defendant's parole status.
Under Virginia law, Ramdass was not parole ineligible. Were the
entry of judgment a purely ministerial act under Virginia law, the
facts in this case would have been materially indistinguishable
from those in
Simmons v.
South Carolina, 512 U. S. 154. Such was
not the case here, however, for, under Virginia law, a guilty
verdict does not inevitably lead to the entry of a judgment order.
Consequently, the Virginia Supreme Court's decision was neither
contrary to, nor an unreasonable application of,
Simmons.
Pp. 178-181.
KENNEDY, J., announced the judgment of the Court and delivered
an opinion, in which REHNQUIST, C. J., and SCALIA and THOMAS, JJ.,
joined. O'CONNOR, J., filed an opinion concurring in the judgment,
post, p. 178. STEVENS, J., filed a dissenting opinion, in
which SOUTER, GINSBURG, and BREYER, JJ., joined,
post, p.
182.
David 1.
Bruck argued the cause for petitioner.
With him on the briefs were
F. Nash Bilisoly, by appointment
of the Court, 528 U. S. 1152,
John M. Ryan, and
Michele J. Brace.
159
Katherine P. Baldwin, Assistant Attorney General of
Virginia, argued the cause for respondent. With her on the brief
was
Mark L. Earley, Attorney General.
JUSTICE KENNEDY announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE SCALIA,
and JUSTICE THOMAS join.
Petitioner received a death sentence in the Commonwealth of
Virginia for murder in the course of robbery. On review of a
decision denying relief in federal habeas corpus, he seeks to set
aside the death sentence in reliance on
Simmons v.
South
Carolina, 512 U.
S. 154 (1994). He argues the jury should have been instructed
of his parole ineligibility based on prior criminal convictions. We
reject his claims and conclude
Simmons is inapplicable to
petitioner since he was not parole ineligible when the jury
considered his case, nor would he have been parole ineligible by
reason of a conviction in the case then under consideration by the
jury. He is not entitled to the relief he seeks.
I
Sometime after midnight on September 2, 1992, Mohammed Kayani
was working as a convenience store clerk. Petitioner Bobby Lee
Ramdass and his accomplices entered the store and forced the
customers to the floor at gunpoint. While petitioner ordered Kayani
to open the store's safe, accomplices took the customers' wallets,
money from the cash registers, cigarettes, Kool Aid, and lottery
tickets. When Kayani fumbled in an initial attempt to open the
safe, petitioner squatted next to him and yelled at him to open the
safe. At close range he held the gun to Kayani's head and pulled
the trigger. The gun did not fire at first; but petitioner tried
again and shot Kayani just above his left ear, killing him.
Petitioner stood over the body and laughed. He later inquired of an
accomplice why the customers were not killed as well.
160
Opinion of KENNEDY, J.
The murder of Kayani was no isolated incident. Just four months
earlier, after serving time for a 1988 robbery conviction,
petitioner had been released on parole and almost at once engaged
in a series of violent crimes. In July, petitioner committed a
murder in Alexandria, Virginia. On August 25, petitioner and three
accomplices committed an armed robbery of a Pizza Hut restaurant,
abducting one of the victims. Four days later, petitioner and an
accomplice pistol-whipped and robbed a hotel clerk. On the
afternoon of August 30, petitioner and two accomplices robbed a
taxicab driver, Emanuel Selassie, shot him in the head, and left
him for dead. Through major surgery and after weeks of
unconsciousness, Selassie survived. The same day as the Selassie
shooting, petitioner committed an armed robbery of a Domino's Pizza
restaurant.
The crime spree ended with petitioner's arrest on September 11,
1992, nine days after the Kayani shooting. Petitioner faced a
series of criminal prosecutions. For reasons we discuss later, the
sequence of events in the criminal proceedings is important to the
claim petitioner makes in this Court. Under Virginia law, a
conviction does not become final in the trial court until two steps
have occurred. First, the jury must return a guilty verdict; and,
second, some time thereafter, the judge must enter a final judgment
of conviction and pronounce sentence, unless he or she determines
to set the verdict aside. On December 15, 1992, a jury returned a
guilty verdict based on the Pizza Hut robbery. On January 7, 1993,
a jury rendered a guilty verdict for the Domino's robbery; on
January 22, the trial court entered a judgment of conviction on the
Pizza Hut verdict; on January 30, the sentencing phase of the
Kayani murder trial was completed, with the jury recommending that
petitioner be sentenced to death for that crime; and on February
18, the trial court entered judgment on the Domino's verdict. After
his capital trial for the Kayani killing, petitioner pleaded guilty
to the July murder in Alexandria and to the shooting of
161
Selassie. Thus, at the time of the capital sentencing trial, a
final judgment of conviction had been entered for the Pizza Hut
crime; a jury had found petitioner guilty of the Domino's crime,
but the trial court had not entered a final judgment of conviction;
and charges in the Alexandria murder had not yet been filed, and
indeed petitioner had denied any role in the crime until sometime
after the sentencing phase in the instant case.
At the sentencing phase of the capital murder trial for Kayani's
murder, the Commonwealth submitted the case to the jury using the
future dangerousness aggravating circumstance, arguing that the
death penalty should be imposed because Ramdass "would commit
criminal acts of violence that would constitute a continuing
serious threat to society." Va. Code Ann. §
19.2-264.4(C)
(1993). Petitioner countered by arguing that he would never be
released from jail, even if the jury refused to sentence him to
death. For this proposition, Ramdass relied on the sentences he
would receive for the crimes detailed above, including those which
had yet to go to trial and those (such as the Domino's crime) for
which no judgment had been entered and no sentence had been
pronounced. Counsel argued petitioner "is going to jail for the
rest of his life .... I ask you to give him life. Life, he will
never see the light of day .... " App. 85. At another point,
counsel argued: "'Ramdass will never be out of jail. Your sentence
today will insure that if he lives to be a hundred and twenty two,
he will spend the rest of his life in prison.'"
187 F.3d
396, 400
(CA4 1999). These arguments drew no objection
from the Commonwealth.
The prosecution's case at sentencing consisted of an account of
some of Ramdass' prior crimes, including crimes for which Ramdass
had not yet been charged or tried, such as the shooting of Selassie
and the assault of the hotel clerk. Investigators of Ramdass'
crimes, an accomplice, and two victims provided narrative
descriptions of the crime spree preceding the murder, and their
evidence of those crimes
162
Opinion of KENNEDY, J.
was the basis for the prosecution's case in the sentencing
hearing. Evidence of the crime spree did not depend on formal
convictions for its admission. The prosecutor, moreover, did not
mention the Domino's crime in his opening statement and did not
introduce evidence of the crime during the Commonwealth's case in
chief. App. 8-47. Ramdass himself first injected the Domino's crime
into the sentencing proceeding, testifying in response to his own
lawyer's questions about his involvement in the crime. In closing,
the prosecutor argued that Ramdass could not live by the rules of
society "either here or in prison."
Id., at 86.
During the juror deliberations, the jury sent a note to the
judge asking: "'[I]f the Defendant is given life, is there a
possibility of parole at some time before his natural death?'"
Id., at 88. Petitioner's counsel suggested the following
response: '" "You must not concern yourself with matters that will
occur after you impose your sentence, but you may impose
[sic] that your sentence will be the legal sentence imposed
in the case." ",
Id., at 89. The trial judge refused the
instruction, relying on the then-settled Virginia law that parole
is not an appropriate factor for the jury to consider, and informed
the jury that they "'are not to concern [them]selves with what may
happen afterwards.'"
Id., at 91. The next day the jury
returned its verdict recommending the death sentence.
Virginia law permitted the judge to give a life sentence despite
the jury's recommendation; and two months later the trial court
conducted a hearing to decide whether the jury's recommended
sentence would be imposed. During the interval between the jury
trial and the court's sentencing hearing, final judgment had been
entered on the Domino's conviction. At the court's sentencing
hearing, Ramdass' counsel argued for the first time that his prior
convictions rendered him ineligible for parole under Virginia's
threestrikes law, which denies parole to a person convicted of
three separate felony offenses of murder, rape, or armed
163
robbery, which were not part of a common act, transaction, or
scheme. Va. Code Ann. § 53.1-151(B1) (1993). Petitioner's counsel
also stated that three jurors contacted by petitioner's counsel
after the verdict expressed the opinion that a life sentence would
have been imposed had they known Ramdass would not be eligible for
parole. These jurors were not identified by name, were not produced
for testimony, and provided no formal or sworn statements
supporting defense counsel's representations. App. 95. Rejecting
petitioner's arguments for a life sentence, the trial court
sentenced petitioner to death.
Ramdass appealed, arguing that his parole ineligibility, as he
characterized it, should have been disclosed to the jury. The
Virginia Supreme Court rejected the claim, applying its settled law
"that a jury should not hear evidence of parole eligibility or
ineligibility because it is not a relevant consideration in fixing
the appropriate sentence."
Ramdass v.
Commonwealth,
246 Va. 413, 426, 437 S. E. 2d 566, 573 (1993). The court did not
address whether Ramdass had waived the claim by failing to mention
the three-strikes law at trial or by not objecting to the
instructions that were given. Other Virginia capital defendants in
Ramdass' position had been raising the issue at trial, despite
existing Virginia law to the contrary.
E. g., Mickens v.
Commonwealth, 249 Va. 423, 424, 457 S. E. 2d 9, 10 (1995);
O'Dell v.
Thompson, 502 U. S. 995, 996-997, n. 3
(1991) (Blackmun, J., respecting denial of certiorari);
Mueller v.
Commonwealth, 244 Va. 386, 408-409, 422 S.
E. 2d 380, 394 (1992);
Eaton v.
Commonwealth, 240 Va.
236, 244, 397 S. E. 2d 385, 390 (1990).
From the State Supreme Court's denial of his claims on direct
review, Ramdass filed a petition for a writ of certiorari in this
Court. One of his arguments was that the judge should have
instructed the jury that he was ineligible for parole. While the
petition was pending, we decided
Simmons v.
South
Carolina, 512 U.
S. 154 (1994), which held that where a defendant was parole
ineligible under state law at
164
Opinion of KENNEDY, J.
the time of the jury's death penalty deliberations, the jury
should have been informed of that fact. We granted Ramdass'
petition for certiorari and remanded the case for reconsideration
in light of
Simmons. Ramdass v.
Virginia, 512 U. S.
1217 (1994).
On remand, the Virginia Supreme Court affirmed Ramdass' death
sentence, concluding that
Simmons applied only if Ramdass
was ineligible for parole when the jury was considering his
sentence.
Ramdass v.
Commonwealth, 248 Va. 518, 450
S. E. 2d 360 (1994). The court held that Ramdass was not parole
ineligible when the jury considered his sentence because the Kayani
murder conviction was not his third conviction for purposes of the
three-strikes law. In a conclusion not challenged here, the court
did not count the 1988 robbery conviction as one which qualified
under the three-strikes provision. (It appears the crime did not
involve use of a weapon.) The court also held the Domino's robbery
did not count as a conviction because no final judgment had been
entered on the verdict. Thus, the only conviction prior to the
Kayani murder verdict counting as a strike at the time of the
sentencing trial was for the Pizza Hut robbery. Unless the
three-strikes law was operative, Ramdass was eligible for parole
because, at the time of his trial, murder convicts became eligible
for parole in 25 years. Va. Code Ann. §
53.1-151(C) (1993).
Under state law, then, Ramdass was not parole ineligible at the
time of sentencing; and the Virginia Supreme Court declined to
apply
Simmons to reverse Ramdass' sentence.
Ramdass filed a petition for a writ of certiorari contending
that the Virginia Supreme Court misapplied
Simmons, and we
denied certiorari.
Ramdass v.
Virginia, 514 U. S.
1085 (1995). After an unsuccessful round of postconviction
proceedings in Virginia courts, Ramdass sought habeas corpus relief
in federal court. He argued once more that the Virginia Supreme
Court erred in not applying
Simmons. The District Court
granted relief. 28 F. Supp. 2d 343 (ED Va.
165
1998). The Court of Appeals reversed. 187 F. 3d, at 407. When
Ramdass filed a third petition for a writ of certiorari, we stayed
his execution, 528 U. S. 1015 (1999), and granted certiorari, 528
U. S. 1068 (2000). Ramdass contends he was entitled to a jury
instruction of parole ineligibility under the Virginia
three-strikes law. Rejecting the contention, we now affirm.
II
Petitioner bases his request for habeas corpus relief on
Simmons, supra. The premise of the
Simmons case was
that, under South Carolina law, the capital defendant would be
ineligible for parole if the jury were to vote for a life sentence.
Future dangerousness being at issue, the plurality opinion
concluded that due process entitled the defendant to inform the
jury of parole ineligibility, either by a jury instruction or in
arguments by counsel. In our later decision in
O'Dell v.
Netherland, 521 U. S. 151, 166
(1997), we held that
Simmons created a new rule for purposes
of
Teague v.
Lane, 489 U. S. 288 (1989).
O'Dell reaffirmed that the States have some discretion in
determining the extent to which a sentencing jury should be advised
of probable future custody and parole status in a future
dangerousness case, subject to the rule of
Simmons. We have
not extended
Simmons to cases where parole ineligibility has
not been established as a matter of state law at the time of the
jury's future dangerousness deliberations in a capital case.
Whether Ramdass may obtain relief under
Simmons is
governed by the habeas corpus statute, 28 U. S. C. § 2254(d)(1)
(1994 ed., Supp. III), which forbids relief unless the statecourt
adjudication of a federal claim "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." As explained in JUSTICE O'CONNOR'S opinion for the
Court in
Williams v.
Taylor, 529 U. S. 362, 412-413
(2000), a state court acts contrary to clearly established federal
law if it applies a legal rule
166
Opinion of KENNEDY, J.
that contradicts our prior holdings or if it reaches a different
result from one of our cases despite confronting indistinguishable
facts. The statute also authorizes federal habeas corpus relief if,
under clearly established federal law, a state court has been
unreasonable in applying the governing legal principle to the facts
of the case. A state determination may be set aside under this
standard if, under clearly established federal law, the state court
was unreasonable in refusing to extend the governing legal
principle to a context in which the principle should have
controlled. The Virginia Supreme Court's ruling in the case before
us was neither contrary to
Simmons nor an unreasonable
application of its rationale.
Petitioner contends his case is indistinguishable from
Simmons, making the Virginia Supreme Court's refusal to
grant relief contrary to that case. In his view the Pizza Hut
conviction and the Domino's guilty verdict classified him, like the
Simmons petitioner, as ineligible for parole when the jury
deliberated his sentence. He makes this argument even though the
Virginia Supreme Court declared that he was not parole ineligible
at the time of the sentencing trial because no judgment of
conviction had been entered for the Domino's crime.
Simmons created a workable rule. The parole-ineligibility
instruction is required only when, assuming the jury fixes the
sentence at life, the defendant is ineligible for parole under
state law. 512 U. S., at 156 (plurality opinion) (limiting holding
to situations where "state law prohibits the defendant's release on
parole");
id., at 165, n. 5 (relying on fact that Simmons
was "ineligible for parole under state law");
id., at 176
(O'CONNOR, J., concurring) (citing state statutes to demonstrate
that for Simmons "the only available alternative sentence to death
... was life imprisonment without [the] possibility of parole").
The instruction was required in
Simmons because it was
agreed that "an instruction informing the jury
167
that petitioner is ineligible for parole is legally accurate."
Id., at 166.
In this case, a
Simmons instruction would not have been
accurate under the law; for the authoritative determination of the
Virginia Supreme Court is that petitioner was not ineligible for
parole when the jury considered his sentence. In
Simmons the
defendant had "conclusively established" his parole ineligibility
at the time of sentencing.
Id., at 158. Ramdass had not. In
Simmons, a sentence had been imposed for the defendant's
prior conviction and he pleaded guilty. Ramdass' Domino's case was
tried to a jury and no sentence had been imposed. While a South
Carolina defendant might challenge a guilty plea, the grounds for
doing so are limited, see
Rivers v.
Strickland, 264
S. C. 121, 124, 213 S. E. 2d 97, 98 (1975) ("The general rule is
that a plea of guilty, voluntarily and understandingly made,
constitutes a waiver of nonjurisdictional defects and defenses,
including claims of violation of constitutional rights prior to the
plea"); see also
Whetsell v.
South Carolina, 276 S.
C. 295, 296, 277 S. E. 2d 891, 892 (1981), and, in all events, such
a motion cannot seek to set aside a jury verdict or be considered a
post-trial motion, for there was no trial or jury verdict in the
case. 512 U. S., at 156.
Simmons further does not indicate
that South Carolina law considered a guilty plea and sentence
insufficient to render the defendant parole ineligible upon
conviction of another crime. Material differences exist between
this case and
Simmons, and the Virginia Supreme Court's
decision is not contrary to the rule
Simmons announced.
Ramdass makes two arguments to equate his own case with
Simmons. N either contention refutes the critical point that
he was not ineligible for parole as a matter of state law at the
time of his sentencing trial. First he contends that the
Simmons petitioner was not parole ineligible at the time of
his sentencing trial. According to Ramdass, a South Carolina
prisoner is not parole ineligible until the State
168
Opinion of KENNEDY, J.
Board of Probation makes a formal determination of parole
ineligibility and the state board had not done so when the capital
sentencing jury fixed Simmons' penalty. This argument is without
merit. Virginia does not argue that Ramdass was parole eligible
because a parole board had not acted. It argues Ramdass was still
parole eligible at the time of the sentencing trial by reason of
his then criminal record as it stood under state law. We further
note that Ramdass bases his argument on briefs and the record filed
in
Simmons. A failure by a state court to glean information
from the record of a controlling decision here and to refine
further holdings accordingly does not necessarily render the
state-court ruling "contrary to, or ... an unreasonable application
of, clearly established Federal law as determined by the Supreme
Court of the United States." § 2254(d)(1). On review of state
decisions in habeas corpus, state courts are responsible for a
faithful application of the principles set out in the controlling
opinion of the Court.
Second, Ramdass argues
Simmons allowed a prisoner to
obtain a parole-ineligibility instruction even though "hypothetical
future events" (such as escape, pardon, or a change in the law)
might mean the prisoner would, at some point, be released from
prison. This argument is likewise of no assistance to Ramdass. The
Simmons petitioner was, as a matter of state law, ineligible
for parole at the time of the sentencing trial. The State was left
to argue that future events might change this status or otherwise
permit Simmons to reenter society.
Id., at 166. Ramdass'
situation is just the opposite. He was eligible for parole at the
time of his sentencing trial and is forced to argue that a
hypothetical future event (the entry of judgment on the Domino's
convictions) would render him parole ineligible under state law,
despite his current parole-eligible status. This case is not
parallel to
Simmons on the critical point. The differences
between the cases foreclose the conclusion that the Virginia
169
Supreme Court's decision denying Ramdass relief was contrary to
Simmons.
Ramdass contends the Virginia Supreme Court nevertheless was
bound to extend
Simmons to cover his circumstances. He urges
us to ignore the legal rules dictating his parole eligibility under
state law in favor of what he calls a functional approach, under
which, it seems, a court evaluates whether it looks like the
defendant will turn out to be parole ineligible. We do not agree
that the extension of
Simmons is either necessary or
workable; and we are confident in saying that the Virginia Supreme
Court was not unreasonable in refusing the requested extension.
Simmons applies only to instances where, as a legal
matter, there is no possibility of parole if the jury decides the
appropriate sentence is life in prison. Petitioner's proposed rule
would require courts to evaluate the probability of future events
in cases where a three-strikes law is the issue. Among other
matters, a court will have to consider whether a trial court in an
unrelated proceeding will grant postverdict relief, whether a
conviction will be reversed on appeal, or whether the defendant
will be prosecuted for fully investigated yet uncharged crimes. If
the inquiry is to include whether a defendant will, at some point,
be released from prison, even the age or health of a prisoner
facing a long period of incarceration would seem relevant. The
possibilities are many, the certainties few. If the
Simmons
rule is extended beyond when a defendant is, as a matter of state
law, parole ineligible at the time of his trial, the State might
well conclude that the jury would be distracted from the other
vital issues in the case. The States are entitled to some latitude
in this field, for the admissibility of evidence at capital
sentencing was, and remains, an issue left to the States, subject
of course to federal requirements, especially, as relevant here,
those related to the admission of mitigating evidence.
Id.,
at 168;
California v.
Ramos, 463 U. S. 992 (1983).
170
Opinion of KENNEDY, J.
By eliminating
Simmons' well-understood rule,
petitioner's approach would give rise to litigation on a peripheral
point. Parole eligibility may be unrelated to the circumstances of
the crime the jury is considering or the character of the
defendant, except in an indirect way. Evidence of potential parole
ineligibility is of uncertain materiality, as it can be overcome if
a jury concludes that even if the defendant might not be paroled,
he may escape to murder again, see
Garner v.
Jones,
529 U. S. 244
(2000); he may be pardoned; he may benefit from a change in parole
laws; some other change in the law might operate to invalidate a
conviction once thought beyond review, see
Bousley v.
United States, 523 U. S. 614 (1998); or he may be no less a
risk to society in prison, see
United States v.
Battle, 173 F.3d
1343 (CAll 1999), cert. denied, 529 U. S. 1022 (2000). The
Virginia Supreme Court had good reason not to extend
Simmons
beyond the circumstances of that case, which included conclusive
proof of parole ineligibility under state law at the time of
sentencing.
A jury evaluating future dangerousness under Virginia law
considers all of the defendant's recent criminal history, without
being confined to convictions. As we have pointed out, the Domino's
Pizza conviction was not even a part of the prosecution's main case
in the sentencing proceedings. Parole ineligibility, on the other
hand, does relate to formal criminal proceedings. The Commonwealth
is entitled to some deference, in the context of its own parole
laws, in determining the best reference point for making the
ineligibility determination. Given the damaging testimony of the
criminal acts in the spree Ramdass embarked upon in the weeks
before the Kayani murder, it is difficult to say just what weight a
jury would or should have given to the possibility of parole; and
it was not error for the Commonwealth to insist upon an accurate
assessment of the parole rules by using a trial court judgment as
the measuring point.
171
As we have explained, the dispositive fact in
Simmons was
that the defendant conclusively established his parole
ineligibility under state law at the time of his trial. Ramdass did
not because of the judicial determination Virginia uses to
establish a conviction's finality under its parole law. We note
that Virginia's rule using judgment in the Domino's case to
determine parole ineligibility is not arbitrary by virtue of
Virginia's also allowing evidence of the defendant's prior criminal
history. To demonstrate Ramdass' evil character and his propensity
to commit violent acts in the future, the prosecutor used Ramdass'
prior criminal conduct, supported in some cases (although not in
the Domino's case) by evidence in the form of the resulting jury
verdicts. Virginia law did not require a guilty verdict, a criminal
judgment, or the exhaustion of an appeal before prior criminal
conduct could be introduced at trial. Virginia law instead
permitted unadjudicated prior bad acts to be introduced as evidence
at trial. See
Watkins v.
Commonwealth, 229 Va. 469,
487, 331 S. E. 2d 422, 435 (1985). For example, the prosecutor was
permitted to use the shooting of Selassie in aggravation, even
though no verdict had been rendered in that case. The prosecutor
likewise asked Ramdass about the July murder in Alexandria. App.
64. (Despite Ramdass' sworn denial, he pleaded guilty to the crime
after being sentenced to death in this case.) The guilty verdict of
the jury in the Domino's case, therefore, was not a necessary
prerequisite to the admissibility of the conduct underlying the
Domino's crime. Ramdass, furthermore, could not object to the
Commonwealth's use of the Domino's crime at sentencing, for it was
he who introduced the evidence. The Commonwealth did not mention
the crime in its opening statement and did not present evidence of
the crime in its case in chief. Ramdass used the Domino's crime to
argue he would never be out of jail; and he overused the crime even
for that purpose. Counsel advised the jury the Domino's crime would
result in
172
Opinion of KENNEDY, J.
"[a]t least another life sentence," when in fact the sentence
imposed was for 18 years.
Id., at 50.
The various public opinion polls to which we are pointed cast no
doubt upon the rule adopted by the Commonwealth. We are referred,
for example, to a poll whose result is reported in Paduano &
Smith, Deathly Errors: Juror Misperceptions Concerning Parole in
the Imposition of the Death Penalty, 18 Colum. Human Rights L. Rev.
211 (1987). The poll is said to permit the conclusion that 67% of
potential jurors would be more likely to give a life sentence
instead of death if they knew the defendant had to serve at least
25 years in prison before being parole eligible.
The poll is not a proper consideration in this Court. Mere
citation of a law review to a court does not suffice to introduce
into evidence the truth of the hearsay or the so-called scientific
conclusions contained within it. Had the creators of the poll taken
the stand in support of the poll's application to Ramdass' case,
the poll likely would have been demonstrated to be inadmissible.
The poll's reporters concede the poll was limited in scope,
surveying 40 individuals eligible for jury service.
Id., at
221. The poll was limited to jurors in one Georgia county, jurors
who would never serve on a Fairfax County, Virginia, jury. The poll
was supervised by the Southern Prisoners' Defense Committee, a
group having an interest in obtaining life sentences for the
inmates it represents. The poll was conducted in the context of
ongoing litigation of a particular defendant's death sentence. The
article makes no reference to any independent source confirming the
propriety of the sampling methodology. The poll asked but four
questions. It failed to ask those who were surveyed why they held
the views that they did or to ascertain their reaction to evidence
supplied by the prosecution designed to counter the parole
information. No data indicate the questions were framed using
methodology employed by reliable pollsters. No indication exists
regarding the amount of time participants were given to answer.
173
The reporters of the poll contend other similar, limited studies
support the results, yet those studies were conducted over the
telephone "by defense attorneys in connection with motions for new
trials."
Id., at 223, n. 35. These, and other, deficiencies
have been relied upon by courts with factfinding powers to exclude
or minimize survey evidence.
E. g., Amstar Corp. v.
Domino's Pizza, Inc., 615 F.2d
252,
264 (CA5 1980) (inadequate survey universe);
Dreyfus Fund, Inc. v.
Royal Bank of Canada, 525 F.
Supp. 1108, 1116 (SDNY 1981) (unreliable sampling technique);
General Motors Corp. v.
Cadillac Marine &
Boat
Co., 226 F. Supp. 716, 737 (WD Mich. 1964) (only 150 people
surveyed);
Kingsford Products Co. v.
Kingsfords,
Inc., 715 F. Supp. 1013, 1016 (Kan. 1989) (sample drawn from
wrong area);
Conagra, Inc. v.
Geo. A. Hormel &
Co., 784 F. Supp. 700, 726 (Neb. 1992) (survey failed to ask
the reasons why the participant provided the answer he selected);
Sterling Drug, Inc. v.
Bayer AG, 792 F. Supp.
1357, 1373 (SDNY 1992) (questions not properly drafted);
American Home Products Corp. v.
Proctor &
Gamble Co., 871 F. Supp. 739, 761 (NJ 1994) (respondents
given extended time to answer);
Gucci v.
Gucci Shops,
Inc., 688 F. Supp. 916, 926 (SDNY 1988) (surveys should be
conducted by recognized independent experts);
Schering Corp.
v.
Schering Aktiengesellschaft, 667 F. Supp. 175, 189 (NJ
1987) (attorney contact and interference invalidates poll); see
generally
Toys "R" Us, Inc. v.
Canarsie Kiddie Shop,
Inc., 559 F. Supp. 1189 (EDNY 1983) (listing factors to
consider in determining whether a survey is reliable). The poll
reported in the Columbia Human Rights Law Review should not be
considered by this Court. See
Stanford v.
Kentucky,
492 U. S. 361,
377 (1989) (plurality opinion). It is the Virginia Supreme Court's
decision rejecting Ramdass' claims that is under review in this
habeas proceeding. It was not required to consult public opinion
polls.
Ramdass' claim is based on the contention that it is inevitable
that a judgment of conviction would be entered for
174
Opinion of KENNEDY, J.
his Domino's crime. He calls the entry of judgment following a
jury verdict a "ministerial act whose performance was foreseeable,
imminent, and inexorable." Brief for Petitioner 21, 36. Petitioner
cites no authority for the proposition that a judicial officer's
determination that final judgment should be entered (as opposed to
the clerk's noting of the final judgment in the record) is a
ministerial act. We are not surprised. We doubt most lawyers would
consider a criminal case concluded in the trial court before
judgment is entered, for it is judgment which signals that the case
has become final and is about to end or reach another stage of
proceedings. See Va. Sup. Ct. Rule 1:1, 5A:6 (1999) (requiring
notice of appeal to be filed "within 30 days after entry of final
judgment").
Post-trial motions are an essential part of Virginia criminal
law practice, as discussed in leading treatises such as J.
Costello, Virginia Criminal Law and Procedure 829 (2d ed. 1995),
and R. Bacigal, Virginia Criminal Procedure 337 (2d ed. 1989).
Under Virginia Supreme Court Rule 3A:15(b) (1999), a verdict of
guilty may be set aside "for error committed during the trial or if
the evidence is insufficient as a matter of law to sustain a
conviction." A few examples from the reports of Virginia decisions
demonstrate it to be well-established procedure in Virginia for
trial courts to consider and grant motions to set aside jury
verdicts.
E. g.,
Floyd v.
Commonwealth, 219
Va. 575, 576-577, 249 S. E. 2d 171, 172 (1978);
Payne v.
Commonwealth, 220 Va. 601, 602-603,260 S. E. 2d 247, 248
(1979);
Johnson v.
Commonwealth, 20 Va. App. 547,
553, 458 S. E. 2d 599, 601 (1995);
Walker v.
Commonwealth, 4 Va. App. 286, 291, 356 S. E. 2d 853, 856
(1987);
Gorham v.
Commonwealth, 15 Va. App. 673, 674,
426 S. E. 2d 493, 494 (1993);
Carter v.
Commonwealth,
10 Va. App. 507, 509, 393 S. E. 2d 639, 640 (1990);
Cullen
v.
Commonwealth, 13 Va. App. 182, 184, 409 S. E. 2d 487, 488
(1991).
175
The motion to set aside may be filed and resolved before
judgment is entered,
e. g., Walker, supra, at 291, 356 S. E.
2d, at 856, and trial courts may conduct hearings or allow evidence
to be introduced on these motions. Postverdict motions may be
granted despite the denial of a motion to strike the evidence made
during trial,
e. g., Gorham, supra, at 674, 426 S. E. 2d, at
494, or after denial of a pretrial motion to dismiss,
Cullen,
supra, at 184, 409 S. E. 2d, at 488. Federal judges familiar
with Virginia practice have held that postverdict motions give a
defendant a full and fair opportunity to raise claims of trial
error,
DiPaola v.
Riddle, 581 F. 2d 1111, 1113
(CA4 1978). In contexts beyond the threestrikes statute,
Virginia courts have held that the possibility of postverdict
relief renders a jury verdict uncertain and unreliable until
judgment is entered.
E. g., Dowell v.
Commonwealth,
12 Va. App. 1145, 408 S. E. 2d 263, 265 (1991); see also
Smith v.
Commonwealth, 134 Va. 589, 113 S. E. 707
(1922); Blair v.
Commonwealth, 66 Va. 850, 858, 861
(1874) (availability of postverdict motions means it is at the
defendant's option whether to "let judgment be entered in regular
order"). In one recent case, the Virginia Court of Appeals relied
on Rule 3A:15 to hold, contrary to petitioner's contention here,
that it is an "incorrect statement of the law" to say that the
trial court has no concern with the proceedings after the jury's
verdict.
Davis v.
Commonwealth, No. 2960-98-2, 2000
WL 135148, *4, n. 1 (Va. App., Feb. 8, 2000) (unpublished).
The time for Ramdass to file a motion to set aside the Domino's
verdict had not expired when the jury was deliberating on the
sentence for Kayani's murder; and he concedes he could have filed
postverdict motions. The Domino's case was pending in a different
county from the Kayani murder trial and the record contains no
indication that Ramdass' counsel advised the judge in the Kayani
case that he would not pursue postverdict relief in the Domino's
case. The Virginia Supreme Court was reasonable to reject a
parole-
176
Opinion of KENNEDY, J.
ineligibility instruction for a defendant who would become
ineligible only in the event a trial judge in a different county
entered final judgment in an unrelated criminal case.
Ramdass complains that the Virginia Supreme Court's selection of
the entry of judgment rather than the jury verdict is arbitrary. He
points out that a trial court may set the judgment aside within 21
days after its entry. Va. Sup. Ct. Rule 1:1 (1999). Appeal is also
permitted. We agree with Ramdass that the availability of post
judgment relief in the trial court or on appeal renders uncertain
the finality and reliability of even a judgment in the trial court.
Our own jurisprudence under
Teague v.
Lane, for
example, does not consider a Virginia-state-court conviction final
until the direct review process is completed.
O'Dell v.
Netherland, 521 U. S., at 157. States may take different
approaches and we see no support for a rule that would require a
State to declare a conviction final for purposes of a three-strikes
statute once a verdict has been rendered. Verdicts may be
overturned by the state trial court, by a state appellate court, by
the state supreme court, by a state court on collateral attack, by
a federal court in habeas corpus, or by this Court on review of any
of these proceedings. Virginia's approach, which would permit a
Simmons instruction despite the availability of post
judgment relief that might, the day after the jury is instructed
that the defendant is parole ineligible, undo one of the strikes
supporting the instruction, provided Ramdass sufficient protection.
A judgment, not a verdict, is the usual measure for finality in the
trial court.
Our conclusion is confirmed by a review of petitioner's conduct
in this litigation. The current claim that it was certain at the
time of trial that Ramdass would never be released on parole in the
event the jury sentenced him to life is belied by the testimony his
counsel elicited from him at sentencing. Ramdass' counsel asked
him, "Are you going to spend the rest of your life in prison?"
Despite the claim advanced
177
now that parole would be impossible, the answer counsel elicited
from Ramdass at trial was, "I don't know." We think Ramdass' answer
at trial is an accurate assessment of the uncertainties that
surrounded his parole and custody status at the time of trial. In
like manner, before the Virginia Supreme Court's decision now
challenged as unreasonable, petitioner had not argued that his
parole eligibility should have been determined based on the date of
the Domino's verdict (January 7, 1993) rather than the date the
judgment was entered (February 18, 1993). He did not mention the
three-strikes law at trial, although the Domino's verdict had
already been returned. Petitioner's brief to the Virginia Supreme
Court on remand from this Court conceded that the appropriate date
to consider for the Domino's crime was the date of judgment. His
brief states Ramdass "was convicted ... on 18 February 1993 of
armed robbery" and that "[o]f course, the ... 18 February
convictio[n] occurred after the jury findings in this case." App.
123-124. Thus the Virginia Supreme Court treated the Domino's
conviction in the manner urged by petitioner. Petitioner's change
of heart on the controlling date appears based on a belated
realization that the 1988 robbery conviction did not qualify as a
strike, meaning that he needed the Domino's conviction to count. To
accomplish the task, petitioner began arguing that the date of the
jury verdict controlled. His original position, however, is the one
in accord with Virginia law.
State trial judges and appellate courts remain free, of course,
to experiment by adopting rules that go beyond the minimum
requirements of the Constitution. In this regard, we note that the
jury was not informed that Ramdass, at the time of trial, was
eligible for parole in 25 years, that the trial judge had the power
to override a recommended death sentence, or that Ramdass' prior
convictions were subject to being set aside by the trial court or
on appeal. Each statement would have been accurate as a matter of
law, but each statement might also have made it more probable that
the
178
O'CONNOR, J., concurring in judgment
jury would have recommended a death sentence. We further note
Virginia has expanded
Simmons by allowing a defendant to
obtain a
Simmons instruction even where the defendant's
future dangerousness is not at issue.
Yarbrough v.
Commonwealth, 258 Va. 347, 519 S. E. 2d 602 (1999).
Likewise, Virginia has, after Ramdass' conviction, eliminated
parole for capital defendants sentenced to life in prison. The
combination of
Yarbrough and the elimination of parole means
that all capital defendants in Virginia now receive a
Simmons instruction if they so desire. In circumstances like
those presented here, even if some instruction had been given on
the subject addressed by
Simmons, the extent to which the
trial court should have addressed the contingencies that could
affect finality of the other convictions is not altogether clear. A
full elaboration of the various ways to set a conviction aside or
grant a new trial might not have been favorable to the petitioner.
In all events the Constitution does not require the instruction
that Ramdass now requests. The sentencing proceeding was not
invalid by reason of its omission.
III
The Virginia Supreme Court's decision to deny petitioner relief
was neither contrary to, nor an unreasonable application of,
Simmons. The United States Court of Appeals for the Fourth
Circuit was required to deny him relief under 28 U. S. C. § 2254
(1994 ed. and Supp. III), and we affirm the judgment.
It is so ordered.
JUSTICE O'CONNOR, concurring in the judgment.
In
Simmons v.
South Carolina, 512 U. S. 154 (1994), a
majority of the Court held that "[w]here the State puts the
defendant's future dangerousness in issue, and the only available
alternative sentence to death is life imprisonment without
possibility of parole, due process entitles the defendant
179
to inform the capital sentencing jury ... that he is parole
ineligible."
Id., at 178 (O'CONNOR, J., concurring in
judgment); see also
id., at 163-164 (plurality opinion). Due
process requires that "a defendant not be sentenced to death 'on
the basis of information which he had no opportunity to deny or
explain.'''
Id., at 175 (O'CONNOR, J., concurring in
judgment) (quoting
Skipper v.
South Carolina,
476 U. S. 1, 5, n.
1 (1986)). Accordingly, where the State seeks to demonstrate that
the defendant poses a future danger to society, he "should be
allowed to bring his parole ineligibility to the jury's attention"
as a means of rebutting the State's case. 512 U. S., at 177. I have
no doubt that
Simmons was rightly decided.
In this case, because petitioner seeks a writ of habeas corpus
rather than the vacatur of his sentence on direct appeal, the scope
of our review is governed by 28 U. S. C. § 2254(d)(1) (1994 ed.,
Supp. III). Accordingly, we may grant relief only if the Virginia
Supreme Court's decision "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,"
ibid.; see also
Williams v.
Taylor, 529 U. S. 362, 402-409
(2000), which in this case is our holding in
Simmons.
The Virginia Supreme Court concluded that
Simmons was
inapplicable because petitioner "was not ineligible for parole when
the jury was considering his sentence."
Ramdass v.
Commonwealth, 248 Va. 518, 521, 450 S. E. 2d 360, 361
(1994). The court noted that, under Virginia law, any person who
has been convicted of three separate felony offenses of murder,
rape, or robbery "by the presenting of firearms or other deadly
weapon" "shall not be eligible for parole." Va. Code Ann. §
53.1-151(B1) (1993). It explained that Ramdass was not parole
ineligible at the time of his capital sentencing proceeding because
the Kayani murder conviction would not constitute his third
conviction for purposes of § 53.1-151(B1). Critically, the court
held that, although Ramdass had been
180
O'CONNOR, J., concurring in judgment
found guilty of the armed robbery of a Domino's Pizza
restaurant, that verdict did not count as a prior conviction under
§ 53.1-151(B1) because judgment had not yet been entered on that
verdict at the time of Ramdass' capital sentencing proceeding. 248
Va., at 520, 450 S. E. 2d, at 361.
For the reasons explained in the plurality opinion, the Virginia
Supreme Court's decision was neither contrary to, nor an
unreasonable application of, our holding in
Simmons. Whether
a defendant is entitled to inform the jury that he is parole
ineligible is ultimately a question of federal law, but we look to
state law to determine a defendant's parole status. In
Simmons, the defendant had "conclusively establish[ed]" that
he was parole ineligible at the time of sentencing, and the
"prosecution did not challenge or question [his] parole
ineligibility." 512 U. S., at 158. Ramdass, however, was not
ineligible for parole when the jury considered his sentence as the
relevant court had not yet entered the judgment of conviction for
the Domino's Pizza robbery. Were the entry of judgment a purely
ministerial act under Virginia law, in the sense that it was
foreordained, I would agree with petitioner that "the only
available alternative sentence to death [was] life imprisonment
without possibility of parole."
Id., at 178 (O'CONNOR, J.,
concurring in judgment). Such circumstances would be "materially
indistinguishable" from the facts of
Simmons. See
Williams v.
Taylor, 529 U. S., at 405. It therefore
would have been "contrary to"
Simmons for the Virginia
Supreme Court to hold that petitioner was not entitled to inform
the jury that he would be parole ineligible. See
ibid. Where
all that stands between a defendant and parole ineligibility under
state law is a purely ministerial act,
Simmons entitles the
defendant to inform the jury of that ineligibility, either by
argument or instruction, even if he is not technically "parole
ineligible" at the moment of sentencing.
Such was not the case here, however. As the plurality opinion
explains, the entry of judgment following a criminal
181
conviction in Virginia state court is not a purely ministerial
act, i.
e., one that is inevitable and foreordained under
state law. The Commonwealth allows criminal defendants to file
post-trial motions following a guilty verdict, and trial courts may
set aside jury verdicts in response to such motions. See
ante, at 173-175. Thus, as a matter of Virginia law, a
guilty verdict does not inevitably lead to the entry of a judgment
order. Consequently, the jury verdict finding petitioner guilty of
the Domino's Pizza robbery did not mean that petitioner would
necessarily be parole ineligible under state law. Indeed,
petitioner himself concedes that there was a "possibility that the
Domino's Pizza trial judge could set aside the verdict under
Virginia Supreme Court Rule 3A:15(b)." Brief for Petitioner 37.
Petitioner nevertheless contends that the possibility that the
trial court would set aside the guilty verdict for the Domino's
Pizza robbery was quite remote, and therefore that the entry of
judgment was extremely likely. But, as the plurality opinion
explains,
Simmons does not require courts to estimate the
likelihood of future contingencies concerning the defendant's
parole ineligibility. Rather,
Simmons entitles the defendant
to inform the capital sentencing jury that he is parole ineligible
where the only alternative sentence to death is life without the
possibility of parole. And unlike the defendant in
Simmons,
Ramdass
was eligible for parole under state law at the time
of his sentencing.
For these reasons, I agree that petitioner is not entitled to
the issuance of a writ of habeas corpus. As our decision in
Williams v.
Taylor makes clear, the standard of
review dictated by 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. III)
is narrower than that applicable on direct review. Applying that
standard here, I believe the Virginia Supreme Court's decision was
neither contrary to, nor an unreasonable application of, our
holding in
Simmons. Accordingly, I concur in the
judgment.
182
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
There is an acute unfairness in permitting a State to rely on a
recent conviction to establish a defendant's future dangerousness
while simultaneously permitting the State to deny that there was
such a conviction when the defendant attempts to argue that he is
parole ineligible and therefore not a future danger. Even the most
miserly reading of the opinions in
Simmons v.
South
Carolina, 512 U.
S. 154 (1994), supports the conclusion that this petitioner was
denied "one of the hallmarks of due process in our adversary
system," namely, the defendant's right "to meet the State's case
against him."
Id., at 175 (O'CONNOR, J., concurring in
judgment).
I
In
Simmons, we held that "[w]hen the State seeks to show
the defendant's future dangerousness ... the defendant should be
allowed to bring his parole ineligibility to the jury's
attention-by way of argument by defense counselor an instruction
from the court-as a means of responding to the State's showing of
future dangerousness."
Id., at 177 (O'CONNOR, J., concurring
in judgment). The present case falls squarely within our
holding.
There is no question that the Commonwealth argued Ramdass'
future dangerousness.
Ante, at 161. In doing so, it focused
almost entirely on Ramdass' extensive criminal history, emphasizing
that his most recent crime spree was committed after his mandatory
release on parole.1 Indeed,
1 The prosecution's opening argument began by recounting
Ramdass' entire criminal history. App. 8-11. Eight of the nine
witnesses the Commonwealth called did little more than relate the
details of Ramdass' criminal past.
Id., at 12-64. The
prosecution's closing argument highlighted the connection between
Ramdass' crimes and his prior releases from prison.
Id., at
80-82. In fact, it did so on several occasions.
Id., at 9
(Ramdass "served time [for the 1988 strong arm robbery conviction]
and was finally paroled in May of 1992");
id., at 46-47
(Ramdass "was
183
the prosecution relied upon the Domino's Pizza robbery-the very
crime Virginia has precluded Ramdass from relying upon to establish
his parole ineligibility.2
There is also no question that Ramdass was denied the
opportunity to inform the jury of his parole ineligibility. During
the sentencing deliberations, the jury asked the following
question: "[I]f the Defendant is given life, is there a possibility
of parole at some time before his natural death?" App. 88. Rather
than giving any kind of straightforward answer, and rather than
permitting counsel to explain petitioner's parole ineligibility,
the court instructed: "[Y]ou should impose such punishment as you
feel is just under the evidence .... You are not to concern
yourselves with what may happen afterwards."
Id., at 91.
Finally, it is undisputed that the absence of a clear
instruction made a difference. The question itself demonstrates
that parole ineligibility was important to the jury, and that the
jury was confused about whether a "life" sentence truly means
life-or whether it means life subject to
released on mandatory parole" in 1992, shortly before his most
recent crime spree began);
id., at 51b-52 (describing
Ramdass' 1992 release on mandatory parole).
2Id., at 57-59 ("On that next night, August 30th, you did
a robbery of the Domino's Pizza over in Alexandria? ... Well, if
the cab driver was shot in the head on August 30th and Domino's
Pizza was August 30th, you did them both the same day; didn't
you?");
id., at 81 ("August 30th, 1992, he robbed Domino's
Pizza at the point of a gun in Alexandria and he robbed Domino's
Pizza not long after he shot that Arlington cab driver through the
head ... ").
Of course,
Simmons v.
South Carolina, 512 U. S. 154 (1994),
applies when the prosecution argues future dangerousness; it does
not require the State to argue any particular past crime. My
purpose in pointing out Virginia's reliance on the Domino's Pizza
verdict is to underscore the unfairness of permitting Virginia to
use it, while denying Ramdass the same use. The plurality's
repeated statement that Virginia brought up the crime in its
cross-examination rather than its case in chief,
ante, at
162, 170, 171, neither means
Simmons is inapplicable nor
mitigates the unfairness here. It only signals the formalism the
plurality is prepared to endorse.
184
the possibility of parole. See
Simmons, 512 U. S., at 178
(O'CONNOR, J., concurring in judgment) ("[T]hat the jury in this
case felt compelled to ask whether parole was available shows that
the jurors did not know whether or not a lifesentenced defendant
will be released from prison"). More critically, three jurors said
that "if the [jury] knew that [Ramdass] would have never gotten out
of prison, they would have given him life rather than death." App.
95. Two of them stated "that would have been the result among all
of [the jurors] beyond question, if they had had that information."
Ibid. But "because they weren't told or given the answer ...
they all had a perception that he would be paroled."
Ibid.3
After we remanded for reconsideration in light of
Simmons, the Virginia Supreme Court held that case did not
apply because Ramdass was not "ineligible for parole when the jury
was considering his sentence."
Ramdass v.
Commonwealth, 248 Va. 518, 520, 450 S. E. 2d 360, 361
(1994). The applicable Virginia statute requires three strikes for
a defendant to be parole ineligible. "At the time that the jury was
considering Ramdass's penalty on January 30, 1993," the court held,
Ramdass "was not ineligible for parole" because he had only two
strikes against him-the Pizza Hut robbery and the instant capital
murder.
Ibid. Ramdass' robbery of the Domino's Pizza did not
count as his third strike, even though the jury in that case had
already found him guilty. Technically, under state law, that did
not count as a "conviction," because Virginia's definition of
"conviction" is not just a guilty verdict. Rather, a "conviction"
also requires a piece of paper signed by the judge entering the
verdict into
3 Once again,
Simmons' applicability does not at all turn
on whether this kind of evidence exists. I point it out only to
emphasize how real the
Simmons concerns are here. The
plurality complains, in essence, that the evidence came in the form
of an uncontested proffer rather than as a sworn affidavit.
Ante, at 163. Again, neither
Simmons' applicability
nor the reality of the case is undercut by this quibble. The only
thing that it proves is the plurality's penchant for formalism.
185
the record.
Id., at 520-521, 450 S. E. 2d, at 361. The
trial judge signed the entry of the judgment in the Domino's Pizza
case 19 days after the end of the sentencing phase in Ramdass'
capital murder proceeding.
Ante, at 160. Therefore, the
Virginia Supreme Court held that at the time "when the jury was
considering [petitioner's] sentence" in the capital murder case,
Ramdass was "not ineligible for parole" under state law, and thus
Simmons was inapplicable.
II
The plurality begins by stating what it thinks is the rule
established in
Simmons: "The parole-ineligibility
instruction is required only when, assuming the jury fixes the
sentence at life, the defendant is ineligible for parole under
state law."
Ante, at 166. The plurality also adds a proviso:
The defendant must be parole ineligible
at the time of
sentencing.4 Given that understanding, the plurality
says "[m]aterial differences exist between this case and
Simmons." Ante, at 167. But the differences to which the
plurality points do not distinguish this case from
Simmons.
The first asserted distinction is that, as the Virginia Supreme
Court stated, Ramdass was not parole ineligible under state law
at the time of sentencing. Ramdass might
4 Though the plurality does not include the proviso in its
initial statement of the rule in
Simmons, it repeats this
requirement no less than 20 times in its 20-page opinion. See
ante, at 159 ("when the jury considered his case"), 161 ("at
the time of the capital sentencing trial"), 163-164 ("at the time
of the jury's death penalty deliberations"), 164 ("when the jury
was considering his sentence"),
ibid. ("at the time of the
sentencing trial"),
ibid. ("at the time of his trial"),
ibid. ("at the time of sentencing"), 165 ("at the time of
the jury's future dangerousness deliberations"), 166 ("when the
jury deliberated his sentence"),
ibid. ("at the time of the
sentencing trial"), 167 ("when the jury considered his sentence"),
ibid. ("at the time of sentencing"),
ibid. ("at the
time of his sentencing trial"),
ibid. (same), 168 ("at the
time of the sentencing trial"),
ibid. (same),
ibid.
("at the time of his sentencing trial"), 169 ("at the time of his
trial"), 171 ("at the time of his trial"), 176 ("at the time of
trial").
186
have become parole ineligible at some later date, but at the
exact moment the jury was deliberating that was not yet so. The
trouble is, that is not a fact that distinguishes Ramdass' case
from Simmons'.
In
Simmons, the relevant parole statute was S. C. Code
Ann. § 24-21-640 (Supp. 1993). See
Simmons, 512 U. S., at
176 (O'CONNOR, J., concurring in judgment) (citing South Carolina
parole law); see also
id., at 156 (plurality opinion)
(same).5 Under that statute, it was the South Carolina Board of
Probation, Parole, and Pardon Services that determined a
defendant's parole eligibility-and that determination would come
after the sentencing phase. Then-current South Carolina case
law unambiguously stated that the eligibility determination would
not be made at trial, but by the parole board.6 Moreover, the
statute required the parole board to find that the defendant's
prior convictions were not committed "pursuant to one continuous
course of conduct," and it was by no means certain that the board
would ultimately reach that conclusion. In fact, in
Simmons
the State of South Carolina steadfastly maintained that Simmons was
not truly parole ineligible at the time of his sentencing
5 That statute read in part: "The board must not grant parole
nor is parole authorized, to any prisoner serving a sentence for a
second or subsequent conviction, following a separate sentencing
for a prior conviction, for violent crimes as defined in Section
16-1-60. Provided that where more than one included offense shall
be committed within a one-day period or pursuant to one continuous
course of conduct, such multiple offenses must be treated for
purposes of this section as one offense."
6 See,
e. g., State v.
McKay, 300 S. C. 113, 115,
386 S. E. 2d 623, 623-624 (1989).
It is true, as the plurality points out,
ante, at 167,
that in
Simmons the defendant did have an entry of judgment.
But, under the plurality's reasoning, the issue is
whether
the defendant is parole ineligible
at the time of
sentencing, not
why he is or is not ineligible. Thus,
whether the defendant is parole
eligible at that time
because he has no entry of judgment or because the parole board has
not yet met is hardly relevant. It is a distinction, but not a
material one.
187
phase because the parole board's determination had not yet been
made.7 Therefore, the fact that parole ineligibility under state
law had not been determined
at the time of sentencing is
simply not a fact that distinguishes
Simmons from Ramdass'
case.8
7 "First and foremost,
at the time of the trial, no state
agency had ever determined that Simmons was going to be serving a
sentence of life without the possibility of parole, despite the
fact that he had earlier pled guilty and been sentenced to a
violent crime prior to this trial. The importance of that
distinction is that the power to make that determination did not
rest with the judiciary, but was solely vested in an executive
branch agency, the South Carolina Board of Probation, Parole and
Pardon Services." Brief for Respondent in
Simmons v.
South Carolina,
The plurality also complains that "a state court [need not]
glean information from the record" in
Simmons. Ante, at 168.
That is true, but it is equally true that a state court cannot
pretend that a fact creates a material distinction simply because
it was not expressly raised and rejected by this Court. Moreover,
it is evident in the opinion itself that Simmons'
parole-ineligibility status had
not been definitively and
legally determined yet at the time of sentencing. See n. 8,
infra.
8 The plurality contends that in
Simmons "the defendant
had 'conclusively established' his parole ineligibility at the time
of sentencing."
Ante, at 167 (quoting
Simmons, 512 U.
S., at 158 (plurality opinion)); see also
ante, at 171. What
Simmons in fact said was that no one questioned that the
defendant had all the facts necessary to be found ineligible at
some future date. It does not indicate that a legal determination
of the defendant's parole ineligibility had already been
definitively made by the parole board. This is clear in the
plurality's citation of the South Carolina parole statute, under
which a defendant's parole status is determined by the parole board
at a later date. See
supra, at 186. This is also clear from
the fact that the plurality relied upon the testimony of the parole
board's attorneys, 512 U. S., at 158-159, demonstrating the
plurality's recognition that it was the parole board that would
ultimately determine Simmons' parole eligibility. Furthermore, the
plurality's statement that Simmons was
"in fact ineligible,"
id., at 158 (emphasis added), as opposed to "legally"
ineligible or ineligible "as a matter of law," clearly
distinguished between the facts as known at that time (which
indicated how Simmons' status would, in all likelihood, ultimately
be determined), and the
legal determination of status (which
would be formally determined at
188
Perhaps recognizing that problem, the plurality shifts ground.
It is not, the plurality says, "only" whether parole ineligibility
under state law has been determined "at the time of sentencing,"
but whether there is "no possibility" of parole eligibility at that
time.
Ante, at 169. In other words, the plurality says that
Simmons applies when there is "conclusive proof"
at the
time of sentencing that the defendant will (in the future)
"inevitabl[yJ" be found parole ineligible.
Ante, at 170,
173-174. In Ramdass' case, the plurality continues, he would not
inevitably be parole ineligible, because, under Virginia
law, his Domino's Pizza robbery verdict could have been set aside
under Virginia Supreme Court Rule 3A:15(b) (1999). That Rule
permits a trial court to set aside a guilty verdict up to 21 days
after final judgment has been entered.
Ante, at
174-175.9
But again, this is not a fact that distinguishes Ramdass' case
from Simmons'. Like Virginia, South Carolina permitted (and still
permits) the court to entertain post-trial motions to set aside a
verdict and such a motion could have
a later date). Finally, if Simmons' parole ineligibility had
been
legally and conclusively resolved by the time of his
trial, there would have been no need for the plurality to discuss
(and reject) possibilities that might have undermined Simmons'
eventual finding of parole ineligibility. See
infra, at
201-203.
The
Simmons plurality did say that "an instruction
informing the jury that petitioner is ineligible for parole is
legally accurate." 512 U. S., at
166; ante, at 166-167. But
in the very next sentence the plurality wrote:
"Certainly, such an instruction is
more accurate than no
instruction at all." 512 U. S., at 166 (emphasis added). This made
it clear that "accuracy," in the sense used there, is a relative
term, not an absolute conclusive determination of legal status.
9 At the time of Ramdass' trial, Rule 3A:15(b) read:
"(b) Motion to Set Aside Verdict.-If the jury returns a verdict
of guilty, the court may, on motion of the accused made not later
than 21 days after entry of a final order, set aside the verdict
for error committed during the trial or if the evidence is
insufficient as a matter of law to sustain a conviction."
189
been filed in Simmons' case.10 If the availability of such a
post-trial procedure makes Ramdass' parole ineligibility less than
inevitable, the same must also have been true for Simmons.u
Accordingly, the mere availability of such a procedure is not a
fact that distinguishes the two cases.
In the end, though, the plurality does not really rest upon
inevitability at all, nor upon the alleged lack of inevitability
represented by the post-trial motion procedure. Instead, the
plurality relies upon the fact that at the time of Ramdass'
sentencing phase, although the jury had rendered a guilty verdict
in the Domino's Pizza robbery case, the trial judge had not yet
entered judgment on the verdict.
Ante, at 160, 167, 173-174,
176. That entry of judgment would come 19 days later.
Ante,
at 160. The distinction is important, the plurality says, because
"[a] judgment, not a verdict, is the usual measure for finality in
the trial court,"
ante, at 176, whereas a verdict without a
judgment is "uncertain,"
ibid. The plurality is, of course,
correct that the missing entry of judgment is a circumstance that
was not present in
Simmons.
10 South Carolina Rule of Criminal Procedure 29(b) (1999) reads,
in relevant part: "A motion for a new trial based on
after-discovered evidence must be made within a reasonable period
of time after the discovery of the evidence."
11 It is true, of course, that a motion for a new trial under
South Carolina's rule must be predicated on the discovery of new
evidence, but that does not meaningfully distinguish its rule from
Virginia's rule, under which a verdict can be set aside only for
trial error or insufficient evidence.
The plurality says that because Simmons pleaded guilty to his
prior crime, he was foreclosed from filing a motion under South
Carolina's rule.
Ante, at 167. For this proposition, the
plurality cites
Whetsell v.
State, 276 S. C. 295, 277
S. E. 2d 891 (1981). This is just flat wrong. See
Johnson v.
Catoe, 336 S. C. 354, 358-359, 520 S. E. 2d 617, 619 (1999)
("Whetsell does not stand for the proposition that a
defendant who admits his guilt is barred from collaterally
attacking his conviction.
Whetsell stands only for the
narrow proposition that a [postconviction relief] applicant who has
pled guilty on advice of counsel cannot satisfy the prejudice prong
on collateral attack if he states he would have pled guilty in any
event").
190
But the plurality's entirely unsupported assertion that an entry
of judgment is more "certain" than a verdict is just flat
wrong.
The sole basis for the plurality's conclusion that the Domino's
Pizza verdict is uncertain is the possibility that it could be set
aside under Rule 3A:15(b). But under that Rule, a guilty verdict
may be set aside
even after judgment has been entered. See
n. 9,
supra. The plurality has cited not a single case
suggesting that the standard for setting aside a verdict under Rule
3A:15(b) varies depending on whether or not judgment has been
entered. Accordingly, a verdict that is susceptible to being set
aside under Rule 3A:15(b) is no more or less certain simply because
judgment has been entered on that verdict; whatever the degree of
uncertainty is, it is identical in both cases. In short, whether
judgment has been entered on the verdict has absolutely no bearing
on the verdict's "uncertainty."
The plurality cites 11 Virginia cases to support its argument
that Rule 3A:15(b) puts a verdict on shaky ground.
Ante, at
174-175. The authorities are less than overwhelming. Only 2 of
those 11 cases actually mention Rule 3A:15(b),12 and one of those
does so in dicta in a footnote in the unpublished decision of an
intermediate state court.13 Four others make passing reference to
some sort of posttrial motion that was
denied, but do
so only in the context of reciting the procedural history of the
case under review.14
12 Dowell v.
Commonwealth, 12 Va. App. 1145, 408
S. E. 2d 263 (1991);
Davis v.
Commonwealth, No.
2960-98-2, 2000 WL 135148 (Va. App., Feb. 8, 2000)
(unpublished).
13 See
id., at *4, n. 1.
14 Floyd v.
Commonwealth, 219 Va. 575, 577, 249 S.
E. 2d 171, 172 (1978) ("Overruling Floyd's motions to set aside the
verdicts ... , the trial court entered judgments on the verdicts");
Johnson v.
Commonwealth, 20 Va. App. 547, 552,458 S.
E. 2d 599, 601 (1995) ("At Johnson's sentencing hearing, defense
counsel made a motion to set aside the verdict .... The trial judge
denied the motion");
Walker v.
Commonwealth, 4 Va.
App. 286, 291, 356 S. E. 2d 853, 856 (1987) ("After the jury was
discharged, defendant
191
Another case also makes passing reference to the denial of a
post-trial motion, but it is clear from the fact that the motion
was predicated on "new evidence" (which is not a basis for a Rule
3A:15(b) motion, see n. 9,
supra) and was made four months
after the verdict that the motion was almost certainly not based on
Rule 3A:15(b).15 Ultimately, the plurality points to only three
cases to demonstrate that "a jury verdict [is] uncertain and
unreliable until judgment is entered."
Ante, at 175 (citing
Dowell v.
Commonwealth, 12 Va. App. 1145, 1149, 408
S. E. 2d 263, 265 (1991) (mentioning Rule 3A:15(b));
Smith
v.
Commonwealth, 134 Va. 589, 113 S. E. 707 (1922);
Blair v.
Commonwealth, 66 Va. 850 (1874)). What these
cases hold, however, is (1) that a verdict without an entry of
judgment may not be used for purposes of impeaching a witness'
credibility; (2) the same may not be used for purposes of a statute
permitting the removal from public office of any person "convicted
of an act ... involving moral turpitude"; but (3) the Governor can
pardon a prisoner after a verdict and before entry of judgment. Not
one of them actually involves a Rule 3A:15(b) motion, nor remotely
says that a verdict itself is "unreliable." 16 The
moved the court to set aside the verdict; the court denied the
motion");
Carter v.
Commonwealth, 10 Va. App. 507,
509, 393 S. E. 2d 639, 640 (1990) ("Carter ... appeals from
judgments of the Circuit Court of Loudoun County ... which ...
denied his post-trial motions for a new trial").
15 Payne v.
Commonwealth, 220 Va. 601, 602-603,
260 S. E. 2d 247, 248 (1979).
16 Dowell does say that a verdict without a judgment is
not reliable "for impeachment purposes," 12 Va. App., at 1149, 408
S. E. 2d, at 265, but this is a far cry from saying the verdict is
itself unreliable. What the three cases actually address is the
question whether a verdict is a "conviction" under state law; they
say that it depends on the context, answering in the negative in
two cases, and in the affirmative in a third.
The plurality also cites two intermediate state-court cases
making passing reference to a trial court's granting of a
post-trial motion, though neither case mentions Rule 3A:15(b). See
Gorham v.
Commonwealth, 15 Va. App. 673, 426 S. E. 2d
493 (1993);
Cullen v.
Commonwealth, 13 Va. App. 182,
409 S. E. 2d 487 (1991). But a mere two cases among all the
criminal
192
plurality scrounges to find case law support, but the result
barely registers on the radar screen.
Furthermore, the plurality thinks that there is "no authority"
for the proposition that entry of judgment is generally considered
to be a "ministerial" matter.
Ante, at 174. In a related
context, however, the Virginia Supreme Court has observed:
"The rendition of a judgment is to be distinguished from its
entry in the records. The rendition of a judgment is the judicial
act of the court, whereas the entry of a judgment by the clerk on
the records of the court is a ministerial, and not a judicial, act
.... The entry or recordation of such an instrument in an order
book is the ministerial act of the clerk and does not constitute an
integral part of the judgment." Rollins v. Bazile,
205 Va. 613, 617, 139 S. E. 2d 114, 117 (1964) (citations and
internal quotation marks omitted).
In any event, there is a more critical point to be made about
the plurality's entry-of-judgment distinction. In relying on that
distinction, the plurality is necessarily abandoning the very
understanding of
Simmons that it purports to be following.
As explained above, to the extent that the availability of Rule
3A:15(b) motions undermines the inevitability of a defendant's
prior verdicts (and therefore his parole ineligibility) under state
law, it does so whether or not judgment has been entered on the
verdict. So why is it that
Simmons does not apply when there
is no entry of judgment?
The answer simply cannot be that, under state law, and at the
time of sentencing, the defendant will not inevitably be
cases in Virginia surely demonstrates that setting aside a
verdict by posttrial motion is a rarity; if those two instances
make the verdict uncertain, then one might as well cite the
solitary case in which the Governor granted a pardon after the
verdict but before the entry of judgment. See
Blair v.
Commonwealth, 66 Va. 850 (1874).
193
found parole ineligible: the inevitability of the verdict is
undermined equally with or without the judgment; and the defendant
is eligible for parole under state law if the verdict is set aside,
regardless of whether it is set aside before or after judgment is
entered. In fact, though, the plurality really makes no attempt to
explain the entry-of-judgment distinction in terms of either the
at-the-time-of-sentencingunder-state-Iaw rule, or in terms of the
inevitable-understate-law rule. Rather, the significance of the
entry of judgment rests upon the assertion that a judgment is
more certain than a jury verdict. The entry-of-judgment
line, then, is really about relative degrees of certainty regarding
parole ineligibility.17
If the question is not one in which state law controls (by
looking to the defendant's conclusively determined status either at
the time of sentencing or inevitably thereafter), the question of
Simmons' applicability must be an issue of federal due
process law. That is a proposition with which I agree entirely;
indeed,
Simmons itself makes that perfectly clear, as I
discuss below. Before examining what
Simmons'
17Though the plurality insists that judgment "is the usual
measure for finality,"
ante, at 176, its own opinion reveals
that it does not mean "finality" in any absolute sense. Rather, it
concedes that while a "jury verdict [is] uncertain,"
ante,
at 175, "even a judgment" is "uncertain" too, because of "the
availability of post judgment relief,"
ante, at 176. What it
means, then-though it is not particularly candid about it-is that a
judgment is
more certain than a verdict. Put differently,
the plurality thinks a judgment is more enduring, in that there is
a greater
probability that a verdict will survive a motion
to set it aside if there has already been an entry of judgment.
It is clear that the significance of the entry of judgment for
the plurality must be based on that belief. The significance cannot
be that without the entry of judgment the defendant is not
ineligible for parole at the exact moment of sentencing; as
explained above, that fact is not dispositive. See
supra, at
185-187. Nor can its significance be that without the entry of
judgment, his parole status is not inevitable. As also explained
above, the entry of judgment has no significance insofar as
inevitability is concerned. See
supra, at 188-192 and this
page.
194
due process requirements entail, however, it is important to
understand the rationale behind
Simmons: the need for
capital sentencing juries to have accurate information about the
defendant in the particular area of parole eligibility.
III
We stated in
Gregg v.
Georgia, 428 U. S. 153 (1976):
"If an experienced trial judge, who daily faces the difficult
task of imposing sentences, has a vital need for accurate
information about a defendant and the crime he committed in order
to be able to impose a rational sentence in the typical criminal
case, then accurate sentencing information is an indispensable
prerequisite to a reasoned determination of whether a defendant
shall live or die by a jury of people who may never before have
made a sentencing decision." Id., at 190 (joint opinion of
Stewart, Powell, and STEVENS, JJ.).
This imperative is all the more critical when the jury must make
a determination as to future dangerousness. "[A]ny sentencing
authority must predict a convicted person's probable future conduct
when it engages in the process of determining what sentence to
impose .... What is essential is that the jury have before it all
possible relevant information about the individual defendant whose
fate it must determine."
Jurek v.
Texas, 428 U. S. 262, 274-276
(1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). When
it comes to issues such as future dangerousness and the possibility
of parole, it is therefore vitally important that "the jury [have]
accurate information of which both the defendant and his counsel
are aware," including "an accurate statement of a potential
sentencing alternative."
California v.
Ramos,
463 U. S. 992,
1004, 1009 (1983).
This is not to say, of course, that the Constitution compels the
States to tell the jury every single piece of information that may
be relevant to its deliberations. See,
e. g., id.,
at
195
1010-1012. Indeed, in
California v.
Ramos, we held
it ordinarily proper to "defe[r] to the State's choice of
substantive factors relevant to the penalty determination."
Id., at 1001. Notwithstanding the broad discretion
recognized in
Ramos, the latitude to which the States are
entitled is not unbounded; at times, it must give way to the
demands of due process.
One such due process requirement is that a defendant must have
an opportunity to rebut the State's case against him.
Simmons, 512 U. S., at 175 (O'CONNOR, J., concurring in
judgment). And "[w]hen the State seeks to show the defendant's
future dangerousness, ... the fact that he will never be released
from prison will often be the only way that a violent criminal can
successfully rebut the State's case."
Id., at 177 (O'CONNOR,
J., concurring in judgment). Accordingly, "despite our general
deference to state decisions regarding what the jury should be told
about sentencing, ... due process requires that the defendant be
allowed [to bring his parole ineligibility to the jury's attention]
in cases in which the only available alternative sentence to death
is life imprisonment without possibility of parole and the
prosecution argues that the defendant will pose a threat to society
in the future."
Ibid.
The rationale for the
Simmons exception to the general
rule of
Ramos is quite apparent. In
Ramos, the
defendant claimed that if the State were permitted to argue that
the Governor could commute a sentence of life without parole, then
due process entitled him to tell the jury that the Governor could
commute a death sentence as well. We rejected that argument,
however, holding that the information the defendant sought to
introduce "would not 'balance' the impact" of telling the jury that
the Governor could commute a sentence of life without parole. 463
U. S., at 1011. Nor would it make the jury "any less inclined to
vote for the death penalty upon learning" that information.
Ibid. Nor, finally, were we persuaded that it would
"impermissibly impe[l] the
196
jury toward voting for the death sentence" if the jury were told
that a life without parole sentence could be commuted, but were not
told that a death penalty could be commuted as well.
Id., at
1012.
Each of these factors, however, points in precisely the opposite
direction when it comes to information about a defendant's parole
ineligibility. If the State argues that the defendant will be a
future danger to society, it quite plainly rebuts that argument to
point out that the defendant-because of his parole
ineligibility-will never be a part of society again.
Simmons, 512 U. S., at 177 (O'CONNOR, J., concurring in
judgment) ("[T]he fact that he will never be released from prison
will often ... rebut the State's case"). And unlike
Ramos,
if the jury is informed of a defendant's parole ineligibility, it
is "less inclined to vote for the death penalty upon learning" that
fact. Conversely, permitting the State to argue the defendant's
future dangerousness, while simultaneously precluding the defendant
from arguing his parole ineligibility, does tend to "impe[l] the
jury toward voting for the death sentence." Despite the plurality's
unsupported remark that "[e]vidence of potential parole
ineligibility is of uncertain materiality,"
ante, at 170,
all of the available data demonstrate to the contrary.
How long a defendant will remain in jail is a critical factor
for juries. One study, for example, indicates that 79% of Virginia
residents consider the number of years that a defendant might
actually serve before being paroled to be an "'important
consideration when choosing between life imprisonment and the death
penalty.'" 18 A similar study reveals that 76.5% of potential
jurors think it is "extremely important" or "very important" to
know that information when deciding between life imprisonment and
the death pen-
18 See Note, The Meaning of "Life" for Virginia Jurors and Its
Effect on Reliability in Capital Sentencing, 75 Va. L. Rev. 1605,
1624, and n. 102 (1989) (citing study by National Legal Research
Group).
197
alty.19 Likewise, two-thirds of the respondents in another
survey stated that they would be more likely to give a life
sentence instead of death if they knew the defendant had to serve
at least 25 years in prison before being parole eligible.20 General
public support for the death penalty also plummets when the survey
subjects are given the alternative of life without paroleP Indeed,
parole ineligibility information is so important that 62.3% of
potential Virginia jurors would actually disregard a judge's
instructions not to consider parole eligibility when determining
the defendant's sentence.22
At the same time, the recent development of parole ineligibility
statutes results in confusion and misperception, such that "common
sense tells us that many jurors might not know whether a life
sentence carries with it the possibility
19 Hughes, Informing South Carolina Capital Juries About Parole,
44 S. C. L. Rev. 383,409-410 (1993) (citing 1991 study by Univ. of
South Carolina's Institute for Public Affairs); see also
Simmons, 512 U. S., at 159 (plurality opinion) (discussing
this study).
20 Paduano & Smith, Deathly Errors: Juror Misperceptions
Concerning Parole in the Imposition of the Death Penalty, 18 Colum.
Human Rights L. Rev. 211, 223 (1987).
21 See,
e. g., Rising Doubts on Death Penalty, USA
Today, Dec. 22, 1999, p. 17A (nationwide 1999 Gallup Poll finds 71%
support death penalty; 56% support death penalty when life without
parole is offered as an option); Finn, Given Choice, Va. Juries
Vote for Life, Washington Post, Feb. 3, 1997, pp. AI, A6
("According to a poll conducted for the Death Penalty Information
Center, which opposes capital punishment, support for the death
penalty nationwide falls from 77 percent to 41 percent if the
alternative is life without parole accompanied by restitution");
Heyser, Death Penalty on the Rise in Virginia, Roanoke Times, Aug.
31, 1998, p. C3 (reporting study by Virginia Tech's Center for
Survey Research, finding that 79% of Virginians "strongly" or
"somewhat" support the death penalty, a figure that drops to 57%
when respondents are given the alternative of life without parole
for 25 years plus restitution); Armstrong & Mills, Death
Penalty Support Erodes, Many Back Life Term as an Alternative,
Chicago Tribune, Mar. 7, 2000, p. 1 (58% of Illinois registered
voters support death penalty; only 43% favor death when given
option of life without parole).
22 See Note, 75 Va. L. Rev., at 1624-1625, and n. 103.
198
of parole."
Simmons, 512 U. S., at 177-178 (O'CONNOR, J.,
concurring in judgment). The statistical data bear this out. One
study of potential Virginia jurors asked: "'If a person is
sentenced to life imprisonment for intentional murder during an
armed robbery, how many years on the average do you think that the
person would actually serve before being released on parole 7' "
The most frequent response was 10 years.23 Another potential-juror
survey put the average response at just over eight years.24 And
more than 70% of potential jurors think that a person sentenced to
life in prison for murder can be released at some point in the
future.25
Given this data, it is not surprising that one study concluded:
"[J]urors assessing dangerousness attach great weight to the
defendant's expected sentence if a death sentence is not imposed.
Most importantly, jurors who believe the alternative to death is a
relatively short time in prison tend to sentence to death. Jurors
who believe the alternative treatment is longer tend to sentence to
life." 26 Consequently, every reason why the Governor's commutation
power at issue in
Ramos was
not required to be put
before the jury leads to precisely the opposite conclusion when it
comes to the issue of parole ineligibility. That is exactly why
Simmons is an exception to the normally operative rule of
deference established in
Ramos.27
The plurality-focusing exclusively on one of the many sources
cited-criticizes at length
(ante, at 172-173) these
"so-called scientific conclusions" that merely confirm what
23 See
id., at 1624, and n. 10l.
24 See Paduano & Smith, 18 Colum. Human Rights L. Rev., at
223, n. 34. 25 See Hughes, 44 S. C. L. Rev., at 408; see also Finn,
Washington Post,
at A6 ("[O]nly 4 percent of Americans believe that convicted
murderers will spend the rest of their days in prison").
26 See Eisenberg & Wells, Deadly Confusion: Juror
Instructions in Capital Cases, 79 Cornell L. Rev. 1, 7 (1993).
27See
Simmons, 512 U. S., at 159, 170, n. 9 (plurality
opinion) (discussing above data).
199
every sentencing judge surely knows-that how soon the defendant
may actually be released from prison is highly relevant to the
sentencing decision. The plurality's criticism yet again
underscores the formalistic character of its analysis of the
life-or-death issue presented by this case. In exercising the
judicial function, there are times when judgment is far more
important than technical symmetry.28
IV
The Virginia Supreme Court held that whether
Simmons
applies is a question whose answer is entirely controlled by the
operation of state law. See
supra, at 184-185. This
understanding was adopted by the plurality as well, at least as it
originally stated the holding of
Simmons. See
supra,
at 185. But as explained above, the Virginia court's view, as well
as the plurality's original stance, simply cannot be reconciled
with
Simmons itself. That might explain why the plurality
ultimately abandons that view, instead relying
28 As for the specific criticisms, the plurality first complains
that such surveys are inadmissible as evidence. The question,
though, is not whether the statistical studies are admissible
evidence, but whether they are relevant facts assisting in our
determination of the proper scope of the
Simmons due process
right. Surely they are. In any event, Ramdass
did raise such
studies at his sentencing hearing. See App. 95-96. Virginia had its
chance to object, but opted not to do so. It is far too late in the
day to complain about it now. (Simmons, incidentally, also
introduced similar evidence in his trial without objection. See 512
U. S., at 159 (plurality opinion).)
Next, the plurality says that one of the studies I cited focused
only on Georgia jurors, as if Georgians have some unique preference
for life without parole. In any event, the studies focusing on
Virginia jurors yield the same results. See nn. 18, 21,
supra. Finally, the plurality questions the objectivity of
one particular study. Even if the plurality were justified in that
criticism, it surely has no basis for questioning the many other
sources cited. See n. 19,
supra (Dniv. of South Carolina's
Institute for Public
Mfairs), n. 21 (Gallup Poll and
Virginia Tech's Center for Survey Research), n. 26 (study by
Associate Professor of Statistics, Dept. of Economic and Social
Statistics, Cornell Dniv.).
200
on an assessment of how probable it is that the defendant will
be found parole ineligible-or, as the plurality might put it, what
is "more certain" under state law.
The plurality is correct to reject the Virginia Supreme Court's
holding that state law entirely controls the applicability of
Simmons. Simmons announced a rule of due process, not state
law. 512 U. S., at 156 (plurality opinion);
id., at 177
(O'CONNOR, J., concurring in judgment). This is not to say that the
federal due process right in
Simmons does not make
reference to state law, for surely it does; the very reason
why
Simmons is an exception to
Ramos is because of
the consequences of parole ineligibility under state law. But that
is not the same thing as saying that the precise, technical
operation of state law entirely controls its applicability.
Simmons itself makes this perfectly clear. In that case
South Carolina argued that "because future exigencies such as
legislative reform, commutation, clemency, and escape might allow
[Simmons] to be released into society, [Simmons] was not entitled
to inform the jury that he is parole ineligible." 512 U. S., at
166, and n. 6 (plurality opinion). Indeed, as noted earlier, it
argued that Simmons was not, technically, parole ineligible at the
time of sentencing because the state parole board had not yet made
its determination. See
supra, at 186-187.
Yet the plurality opinion rejected outright the argument that
"hypothetical future developments" control the issue, finding that
South Carolina's argument about state law, while "technically ...
true," and "legally accurate," had "little force."
Simmons,
512 U. S., at 166, and n. 6.29 In other words, the due process
standard of
Simmons was not con-
29While JUSTICE O'CONNOR'S concurring opinion did not make
direct reference to those hypothetical possibilities, South
Carolina's brief and the plurality's opinion put the issue squarely
before the Court. If those hypotheticals had made a difference, the
outcome of the case for the concurring opinion would have been
precisely the opposite of what it was.
201
trolled entirely by the technical minutiae of state law, even
though it looked at state law for determining when the right to
rebut the State's argument was triggered.
It makes perfect sense for
Simmons' due process right to
make reference to, yet not be wholly controlled by, state law. On
the one hand,
Simmons is a limited exception to
Ramos, and as such it is confined to where the defendant
will be parole ineligible-hence the reference to state law. On the
other hand,
Simmons is a constitutional requirement imposed
on the States. If its applicability turned entirely on a
defendant's technical status under state law at the time of
sentencing, the constitutional requirement would be easily evaded
by the artful crafting of a state statute. For example, if Virginia
can define "conviction" to require an entry of judgment, it could
just as easily define "conviction" to require that all final
appeals be exhausted, or that all state and federal habeas options
be foreclosed. And by delaying when the defendant's convictions
count as strikes for parole ineligibility purposes until some point
in time well
after the capital murder sentencing phase, the
State could convert the
Simmons requirement into an opt-in
constitutional rule.30
Simmons' applicability is therefore a question of federal
law, and that case makes clear that the federal standard
essentially disregards future hypothetical possibilities even if
they might make the defendant parole
eligible at some
30 This is true even if one accepts the premise that
Simmons requires us to presume that the
most recent
conviction will ultimately count as a strike regardless of what
could happen under state law after the sentencing hearing. (The
Virginia Supreme Court apparently adopted that view, which explains
why that court counted the capital murder verdict as a strike at
the time of the sentencing hearing, even though judgment had not
yet been entered on the verdict. See
supra, at 184.) Even
accepting that premise, delaying the determination of parole
ineligibility status until after the sentencing hearing would still
mean that the defendant's
other prior convictions would not
count as strikes until well after the capital murder sentencing
phase.
202
point.31 The question in this case, then, boils down to whether
the plurality's line between entry of judgment and a verdict is a
demarcation of
Simmons' applicability that is (1) consistent
with
Simmons; (2) a realistic and accurate assessment of the
probabilities; and (3) a workable, clear rule. I believe the
plurality fails on each score.
It is important to emphasize the precise basis for the
uncertainty the plurality perceives. The plurality limits the
relevant uncertainty to things known
before the time of
sentencing. Events developing the day
after sentencing,
which might lend uncertainty to a defendant's eventual parole
ineligibility do not make
Simmons inapplicable, the
plurality says.
Ante, at 176. What I understand the
plurality to be concerned about is whether the facts, as known at
or prior to sentencing, cast any doubt on whether, after
sentencing, the defendant will become parole ineligible. Even if
nothing definitive has happened yet by the time of sentencing, the
facts as known at that time might well give rise to uncertainty as
to the defendant's parole ineligibility.
The question, then, is what were the facts as known at the time
of Ramdass' sentencing that might cast doubt on whether he would be
found parole ineligible after sentencing. The facts to which the
plurality points are, first, that judgment had not yet been entered
on the verdict, and second, that the verdict could have been set
aside if Ramdass had
31 The plurality's claim,
ante, at 169, that Ramdass
seeks an extension of
Simmons is therefore unfounded. And
its criticism that "[p]etitioner's proposed rule would require
courts to evaluate the probability of future events" ignores the
fact that
Simmons itself did the very same thing.
Ante, at 169. The irony of that comment, moreover, is that
it criticizes the rule for requiring an assessment of the future on
the ground that such an inquiry is inherently speculative. Yet
speculation about the future is precisely what is required when the
jury is asked to assess a defendant's future dangerousness. The
speculation, however, becomes reasoned prediction rather than
arbitrary guesswork only when the jury is permitted to learn of the
defendant's future parole status. See
supra, at 194-199.
Unfortunately, that was not the case here.
203
filed a motion to set aside the verdict under Rule 3A:15(b) and
the trial court had found that motion meritorious. But no motion to
set aside the verdict had been filed or was pending; no legal basis
for granting such a motion had (or has) ever been identified; and
there was not the slightest indication from the Domino's Pizza
robbery trial court that such a motion would have been found
meritorious if it had been filed. In short, the plurality finds
constitutionally significant uncertainty in the hypothetical
possibility that a motion, if it had been filed, might have
identified a trial error and the court possibly could have found
the claim meritorious. The mere
availability of a procedure
for setting aside a verdict that is necessary for the defendant's
parole ineligibility is enough, the plurality says, to make
Simmons inapplicable.
Frankly, I do not see how
Simmons can be found
inapplicable on the basis of such a "hypothetical future
developmen[t]." 512 U. S., at 166 (plurality opinion). The
plurality offers no evidence whatsoever that this possibility-an
"if only" wrapped in a "might have" inside of a "possibly so"is at
all more likely to occur than the "hypothetical future
developments" that
Simmons itself refused to countenance.
Why is that possibility of setting aside the verdict any more
likely than the fanciful scenarios dismissed in
Simmons? Why
is the certainty diminished merely because the trial judge has not
yet entered judgment, when that fact has no bearing on whether a
Rule 3A:15(b) motion will be granted? The plurality never tells us,
for it simply declares, without support, elaboration, or
explanation, that a verdict is more uncertain than a judgment is.
See
supra, at 192-193, and n. 17. The only reason it
suggests for why the verdict here was uncertain is rather
remarkable-that
Ramdass himself said so. That is, the
plurality relies upon the fact that a convicted murderer with
minimal education and a history of drug experimentation including
PCP and cocaine, App. 49, said "I don't know" when asked if he
could ever be released
204
from prison.
Ante, at 177. This evidence is thinner than
gossamer.32
What's more, the plurality's assessment of certainties is
internally inconsistent. As explained earlier, the standard for
setting aside a verdict post-trial is the same regardless of
whether judgment has been entered. Accordingly, if the verdict was
uncertain in the Domino's Pizza case, that was also true for the
Pizza Hut conviction. At the time of the sentencing hearing in the
capital murder case, the deadline for filing a motion under the
Rule had not expired for either the Domino's Pizza verdict or the
Pizza Hut conviction. (The time for filing a motion for the Pizza
Hut conviction expired on February 12, 21 days after judgment had
been entered on that verdict. This was 13 days after the sentencing
phase in the capital murder case ended.) Because there was a
possibility that the Pizza Hut conviction could have been set aside
before judgment was entered on the Domino's Pizza verdict (and
therefore before Ramdass technically became parole ineligible), the
certainty of the verdict was just as much in doubt for that
conviction. The plurality, however, finds the Domino's Pizza
verdict uncertain yet casts no doubt on the Pizza Hut conviction.
How can this possibly be consistent? The plurality never says.
Finally, the plurality's approach is entirely boundless. If the
kind of "hypothetical future developmen[t]" at issue here is
sufficient to make
Simmons inapplicable, would it
32 The plurality also attempts to distinguish the hypotheticals
in
Simmons from those in Ramdass' case by pointing out that
the former hypotheticals, if they happened, would do so
after sentencing.
Ante, at 168169. But the entire
point of the hypotheticals is not whether they could occur before
sentencing, but whether they could occur before the defendant was
technically declared parole ineligible. In
Simmons, that was
true right up until the parole board made its determination. Simply
because the nuances of state law may create an opportunity for
undermining parole ineligibility earlier on does not make the
possibility any less hypothetical or undermine the ineligibility
any less; the same principle is at work either way.
205
be sufficient if, rather than having the possibility of a
recent conviction being set aside by post-trial motion, an
old prior conviction could be set aside on appeal before
judgment had been entered on the Domino's Pizza verdict? Or under a
State's postconviction habeas procedure? More to the point, if the
mere
availability of a post-trial procedure to set aside the
verdict is enough, is the same true as well for the mere
availability of an appeal or state habeas review, so long as
the time had not expired for either? Old convictions necessary for
a defendant's parole ineligibility can be set aside under these
procedures as well. And under each procedure those prior
convictions could potentially be set aside at the crucial
moment.33
It is easy, in this case, to be distracted by the lack of an
entry of judgment and the recentness of Ramdass' prior convictions.
As the above examples demonstrate, however, these facts tend to
detract from, rather than elucidate, the relevant issue. If
Simmons is inapplicable because at least one of the
defendant's prior convictions could be set aside before sentencing
(or before the third strike becomes final, or before whatever time
the plurality might think is the crucial moment), then it should
not matter, under that reasoning, whether it is set aside by
post-trial motion, on appeal, or through state (or federal)
postconviction relief. What's more, the plurality's reasoning would
hold true so long as these procedures are simply
available.
Accordingly, it would not matter whether a defendant's prior
strikes were a day old, a year old, or 100 years old. Nor would it
matter that judgment had been entered on those prior convictions.
So long as such procedures for setting aside old convictions
33 It is true that these old convictions-like the Pizza Hut
convictionhave had an entry of judgment and thus would count as
strikes. But under state law, a defendant must have three strikes
at the same time to be parole ineligible. If a strike were
set aside before the defendant has all three, he is just as much
parole
eligible as he would be if judgment had never been
entered on the verdict.
206
exist and remain technically available prior to a defendant's
capital murder sentencing phase, the defendant's eventual parole
ineligibility is just as uncertain at the crucial moment.
The plurality, however, never addresses any of this, but surely
its holding today is an invitation to such possibilities. Indeed,
if these possibilities make
Simmons inapplicable, does this
not invite the very same circumvention of
Simmons that would
result if the rule turned entirely on state law (see
supra,
at 201), by allowing a State to render
all prior convictions
uncertain simply by holding open
some theoretical
possibility for postconviction relief at all times? Given that
appeals and various forms of postconviction relief undermine the
certainty of a verdict or a "conviction" every bit as much as does
a procedure like Rule 3A:15(b)indeed, probably more so-the
plurality's reasoning either draws an arbitrary line between these
types of procedures, or it accepts that all of these possibilities
make
Simmons inapplicable, in which case that due process
right is eviscerated entirely.34 It is abundantly clear that the
proclaimed "workable" rule the plurality claims to be following is
an illusion.
Ante, at 166.
No such arbitrary line-drawing is at all necessary to decide
this case. It is entirely sufficient simply to hold that Virginia
has offered not one reason for doubting that judgment would be
entered on the Domino's Pizza robbery verdict or for doubting
Ramdass' eventual parole ineligibility. Certainly it has offered no
reason for thinking that the possibil-
34 The plurality says "[t]he Commonwealth is entitled to some
deference, in the context of its own parole laws, in determining
the best reference point for making the ineligibility
determination."
Ante, at 170; see also
ante, at 176
("States may take different approaches and we see no support for a
rule that would require a State to declare a conviction final for
purposes of a three-strikes statute once a verdict has been
rendered"). But the questions here are whether the
federal due
process standard must abide by every state-law distinction, and
if not, is abiding by the entry-ofjudgment distinction arbitrary,
in light of the fact that that distinction has absolutely no
bearing on whether the verdict will be set aside?
207
ity of setting aside the Domino's Pizza robbery verdict is at
all more likely than the hypothetical future developments rejected
in
Simmons. This case thus falls squarely within
Simmons.
Though it is unnecessary to decide it here, a guilty verdict is
the proper line. A guilty verdict against the defendant is a
natural breaking point in the uncertainties inherent in the trial
process. Before that time, the burden is on the State to prove the
accused's guilt beyond a reasonable doubt. A guilty verdict,
however, means that the defendant's presumption of innocence-with
all of its attendant trial safeguards-has been overcome. The
verdict resolves the central question of the general issue of
guilt. It marks the most significant point of the adversary
proceeding, and reflects a fundamental shift in the probabilities
regarding the defendant's fate. For that reason, it is the proper
point at which a line separating the hypothetical from the probable
should be drawn. Moreover, because the State itself can use the
defendant's prior crimes to argue future dangerousness after a jury
has rendered a verdict-as Virginia did here, see
supra, at
182-183, and n. 2-that is also the point at which the defendant's
Simmons right should attach.
V
In
Williams v.
Taylor, 529 U. S. 362, 405 (2000)
(opinion of O'CONNOR, J.), we stated the standard for granting
habeas relief under 28 U. S. C. § 2254(d)(1): "A state-court
decision will certainly be contrary to our clearly established
precedent if the state court applies a rule that contradicts the
governing law set forth in our cases." As I have explained, the
Virginia Supreme Court applied
Simmons as if (a) its
applicability was controlled entirely by state law and (b) the
defendant's parole ineligibility is determined at the exact moment
when the sentencing phase occurs. See
supra, at 184185. But
state law does not control
Simmons' applicability, nor does
the due process right turn on whether the defend-
208
ant has already been found parole ineligible at the exact moment
of sentencing.
Simmons itself makes this entirely clear.
Both aspects of the Virginia Supreme Court's holding, then, applied
a "rule that contradicts the governing law set forth in"
Simmons.
We also held in
Williams that "[a] state-court decision
will also be contrary to this Court's clearly established precedent
if the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless
arrives at a result different from our precedent." 529 U. S., at
406. The Virginia Supreme Court's decision was also contrary to
Simmons in this respect. Because the "hypothetical future
developments" rejected in
Simmons are materially
indistinguishable from the future possibility here, the Virginia
court's decision is contrary to
Simmons.
Even assuming the correct rule had been applied, the Virginia
Supreme Court's decision would be an "unreasonable application" of
Simmons. That court held that the Pizza Hut conviction would
count as a strike, but not the Domino's Pizza robbery verdict. The
only distinction is the lack of an entry of judgment, and the only
reason that matters is because the verdict may be set aside by a
post-trial motion. But that possibility remains identical for both
crimes. To disregard one of those hypothetical possibilities but
not the other based on a state-law distinction that has absolutely
no relevance to the probability that the verdict will be set aside
is an unreasonable application of
Simmons.35
35 Three remaining points should be addressed. First,
Teague v.
Lane, 489 U. S. 288 (1989),
does not bar relief.
Teague's antiretroactivity doctrine is
irrelevant here, as
Simmons was decided before Ramdass'
conviction became final. See
187 F.3d
396, 404, n. 3
(CA4 1999) (case below). Nor is
Teague's bar of applying "new rules" on federal habeas
review any barrier; because Ramdass' case falls squarely within
Simmons, that case controls entirely, and no new rule is
necessary.
The second point concerns the plurality's suggestion that
Ramdass might have waived his
Simmons claim. See
ante, at 162-163, 177. It is not necessary to discuss the
issue at length. It suffices to note that this
209
VI
Nothing in the above arguments should distract us from the fact
that this is a simple case. The question turns on whether the
hypothetical possibility that the trial judge might fail to sign a
piece of paper entering judgment on a guilty verdict should mean
that the defendant is precluded from arguing his parole
ineligibility to the jury. We should also not be distracted by the
plurality's red herring-the possibility of setting aside the
verdict by a post-trial motion. Not only is that possibility
indistinguishable from the nonexhaustive list of hypothetical
future possibilities we dismissed in
Simmons, but it also
fails to distinguish this case from the many other possibilities
that are part of the state criminal justice system, and fails to
distinguish Ramdass' convictions from each other.
The plurality's convoluted understanding of
Simmons and
its diverse implications necessitate a fair amount of disentangling
of its argument. But, once again, this should not divert us from
the plain reality of this case. Juries want to know about parole
ineligibility. We know how important
is precisely the argument that Virginia raised on remand to the
Virginia Supreme Court. That court was not persuaded by the
argument, nor was any court during the entire state and federal
habeas proceedings. See,
e. g., App. 219, 225-226,
281-284 (Magistrate's Report) (discussing its own and other courts'
rejection of waiver argument); 187 F. 3d, at 402 (case below)
(same). It is therefore not surprising that Virginia failed to
argue waiver in its brief in opposition and arguments not raised
therein are themselves normally deemed waived. See
Caterpillar
Inc. v.
Lewis, 519
Finally, that Ramdass' counsel argued that he would go to jail
"for the rest of his life" does not at all satisfy
Simmons'
requirement.
Ante, at 161. The entire point of
Simmons is that the jury will often misunderstand what it
means to sentence a defendant to "life." Consequently, that Ramdass
was able to tell the jury he would get "life" simply does not help
unless he is
also permitted to tell the jury that life means
life without the possibility of parole. Indeed, the very fact that
the jury's question came
after counsel made this argument
demonstrates that the jury was uncertain about what that statement
meant.
210
it is to their life-and-death decisionmaking. We know how
misinformed they are likely to be if we do not give them this
information. We know
Simmons has worked,36 and we know the
States have wholeheartedly embraced it.37
Moreover, we know
this jury thought the information was
critical; we know
this jury misunderstood what a "life"
sentence meant; we know
this jury would have recommended
life instead of death if it had known that Ramdass was parole
ineligible; and we know
this jury did not get a clear answer
to its question. We also know that Virginia entrusts to the jury
the solemn duty of recommending life or death for the defendant.
Why does the Court insist that the Constitution permits the wool to
be pulled over their eyes?
I respectfully dissent.
36 See,
e. g., Finn, Washington Post, at Al
(recounting how, after Virginia adopted life without parole
alternative in 1995, and after
Simmons, "[t]he number of
people given the death sentence in Virginia has plummeted," and
describing "[s]imilar declines ... in Georgia and Indiana" as well
as in Maryland).
37See
Yarbrough v.
Commonwealth, 258 Va. 347, 519
S. E. 2d 602 (1999) (extending
Simmons to apply even when
State does not argue future dangerousness);
ante, at
178.
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