Ramdass v. Angelone

ANGELONE, DIRECTOR, RAMDASS VIRGINIA DEPARTMENT OF CORRECTIONS 12, No. Argued April 99-7000. 2000—Decided June delivered J., of the and judgment announced the Court Kennedy, THOMAS, JJ., J., Scalia and Rehnquist, an in C. and opinion, which judgment, post, O’Connor, J., an in joined. opinion concurring filed J., in Souter, Gins- opinion, filed a which p. dissenting 178. Stevens, JJ., joined, p. and 182. burg, Breyer, post, him for With David I. Bruck the cause argued petitioner. on the briefs were F. Nash by Bilisoly, appointment Michele Brace. John and J. Court, S. M. Ryan, U. Katherine P. Baldwin, Assistant Attorney General of Virginia, argued the respondent. cause for With her on the brief was Earley, Mark L. Attorney General. Kennedy announced the

Justice Court opinion, delivered an in which The Chief Justice, and Justice join. Justice Scaua, Thomas

Petitioner received a death in sentence the Commonwealth murder the course robbery. On review of a decision denying relief in federal corpus, habeas he seeks to set aside the death sentence in reliance on Simmons v. South (1994). Carolina, 512 U. S. 154 argues He jury should have been instructed of parole ineligibility based on prior criminal reject, convictions. We his claims and conclude Simmons inapplicable petitioner since he was not ineligible when the considered his case, nor would he have been ineligible by reason of conviction the ease then under consideration jury. He is not entitled to the relief he seeks.

hH Sometime after midnight September 2, 1992, Mo- Kayani hammed working as a convenience store clerk. Bobby Petitioner Lee Ramdass and his accomplices entered the store and forced the customers to the gunpoint. floor at petitioner While Kayani ordered open store’s safe, accomplices took the customers’ money wallets, from the registers, cash cigarettes, Aid, Kool lottery and tickets. Kayani When fumbled in an initial attempt open to the petitioner safe, squatted next yelled to him and at him to open safe. At range close he gun held Kayani’s the head pulled and trigger. the gun The did fire at first; petitioner but again tried and Kayani shot just above his left ear, killing him. Petitioner stood body over the and laughed. inquired He later of an accomplice why the cus- tomers were not killed as well. Kayani

The murder of was no isolated incident. Just four serving robbery a earlier, months after time for con- petitioner viction, had been released on and almost engaged July, at once in a series violent crimes. In petitioner "Virginia. committed a murder Alexandria, On August petitioner accomplices 25, three and an committed robbery abducting of a armed Pizza Hut restaurant, one of days petitioner accomplice later, the victims. Four and an pistol-whipped a and robbed hotel clerk. On the afternoon August petitioner accomplices 80, and two robbed a taxi-

cab driver, Emanuel shot him in Selassie, head, the left Through major surgery him for dead. and after weeks of day* unconsciousness, Selassie survived. The same as shooting, petitioner robbery Selassie committed an armed of a Domino’sPizza restaurant. spree petitioner’s Sep- crime ended with arrest on days Kayani shooting. 11,

tember nine 1992, after the Peti- prosecutions. tioner faced a series of criminal For reasons sequence we later, discuss pro- events in the criminal ceedings important petitioner claim makes in this "Virginia Court. Under law, a conviction does not become final in the steps trial court until two have First, occurred. jury guilty must return a vei’diet;and, second, some time judge judgment thereafter, must a enter final of con- pronounce viction and sentence, unless he or she deter- to set mines jury verdict aside. On 15,1992, December a guilty returned a robbery. verdict on based the Pizza Hut January On guilty 7,1993, rendered verdict for the robbery; January Domino’s on 22, the trial court entered judgment of January conviction on the Pizza Hut verdict; on sentencing phase Kayani murder trial com- pleted, jury recommending petitioner with the be sen- tenced February to death for that and on crime; 18, the trial court entered Domino’s After verdict. capital Kayani killing, trial petitioner pleaded guilty for the July to the shooting murder in Alexandria and to Selassie. Thus, at the time of capital sentencing trial, a judgment final of conviction been had entered for the Pizza jury Hut crime; petitioner had found guilty of the Domino’s crime, but the trial court had not entered judgment a final charges of conviction; and in the Alexandria murder had not yet petitioner filed, been and indeed any had denied role in the crime until sometime after the sentencing phase in the instant case.

At sentencing phase capital of the murder trial for Kayani’s murder, the Commonwealth submitted the case to jury using the dangerousness future aggravating circum- arguing stance, penalty that death imposed should be because Ramdass "would commit criminal aets of violence that would constitute a continuing serious threat society.” to §19.2-264.4(C)(1993). Code Va. Ann. Petitioner countered by arguing he would never be jail, released from even if the refused to sentence him to death. For propo- this sition, Ramdass relied on the sentences he would receive for the crimes detailed including above, those yet which had to (such go to trial and crime) those as the Domino’s for which no had been entered no sentence had been pronounced. argued petitioner Counsel going jail "is for the rest of you life.... I ask give him life. Life, he will never light see the day App. ....” 85. At another “ point, argued: counsel ‘Ramdass will never be jail. out Your today sentence will insure if he lives to be a hun- twenty dred and two, spend he will the rest of his life ” prison.’ (CA4 1999). 187 F. 3d 396,400 arguments These objection drew no from the Commonwealth. prosecution’s case at sentencing consisted of an ac-

count some prior Ramdass’ including crimes, crimes which Ramdass yet had not charged been or tried, such as shooting of Selassie and the assault of the hotel clerk. Investigators of Ramdass’ crimes, accomplice, an and two provided victims descriptions narrative spree crime preceding the murder, and their evidence of those crimes prosecution’s

was the basis for the case in sentencing the hearing. spree Evidence of the depend crime did not on for- mal prosecutor, convictions for its admission. The more- over, did not mention the crime opening Domino’s in his statement did and not introduce evidence of during the crime the Commonwealth’s App. case chief. 8-47. Ramdass injected himself first the sentencing Domino’scrime into the proceeding, testifying response lawyer’s ques- to his own tions about his closing, involvement in the crime. In the prosecutor argued that Ramdass by could not the live rules society prison.” “either here or in Id., at 86. During juror jury deliberations, the sent note to the “ judge asking: ‘[I]f given the Defendant is life, is there a ” possibility parole at some time before his natural death?’ Id., 88. suggested Petitioner’s counsel following re- sponse: yourself “‘“You must not concern with matters that you will impose occur after your may you sentence, but im- pose [sic] your that legal sentence will be the sentence im- ’” posed in the ease.” Id., judge at 89. The trial refused relying instruction, on the Virginia then-settled law parole that appropriate is not an jury factor for the to con- “ and jury sider, informed the they ‘are not to concern [themjselves may happen with what afterwards.’” Id., at 91. The day jury next returned its verdict recommend- ing the death sentence. permitted law judge give life sentence

despite jury’s recommendation; and two months later the trial hearing court conducted a to decide whether the jury’s recommended imposed. sentence would During the interval between trial and sentencing court’s hearing, final had been entered Domino’s conviction. At sentencing the court’s hearing, Ramdass’ argued counsel for the first prior time that his convictions ineligible rendered him Virginia’s for under three- strikes law, which person denies to a convicted of separate felony three rape, of murder, offenses or armed robbery, which part were not of a common act, transaction, or § scheme. 53.1-151(B1) Ya. (1998). Code Ann. Petition- er’s counsel also stated jurors that three by contacted peti- tioner’s counsel after the expressed verdict opinion a life sentence would have imposed been they had known Ramdass would eligible not be parole. jurors These were not identified name, were produced for testi- mony, provided no formal or sworn support- statements ing defense representations. counsel’s App. 95. Rejecting petitioner’s arguments for a life sentence, the trial court petitioner sentenced to death. appealed, Ramdass arguing parole his ineligibility, as

he it, characterized should have been jury. disclosed to the The Supreme rejected Court the applying claim, its settled law jury “that a should not hear evidence of eligibility ineligibility or because it is not a relevant con sideration fixing the appropriate sentence.” Ramdass v. Commonwealth, 246 Va. 413, 426, 437 (1993). S. E. 2d 566, 573 The court did not address whether Ramdass had waived the claim failing to mention the three-strikes law at trial or by not objecting to the instructions that given. were Other "Virginiacapital defendants in Ramdass’ position had been raising issue at despite trial, existing Virginia law to the contrary. E.g., Mickens v. Commonwealth, 249 Va. 423, 424, 457 S. E. (1995); 9,10 2d O’Dell v. Thompson, 502 U. S. (1991) 995, 996-997, n. 3 (Blaekmun, J., respecting denial of certiorari); Mueller v. Commonwealth, 244 Va. 386,408-409, 422 S. E. 2d (1992); 380, 394 Eaton v. Commonwealth, 240 Va. 236, 244, 397 (1990). S. E. 2d 385, 390 From the State Supreme Court’s denial of his on claims direet review, Ramdass petition filed a for a writ of certiorari in this Court. One of arguments was judge should have jury instructed the that he was ineligible for parole. While petition pending, we decided Sim- mons v. South Carolina, 512 (1994), U. S. 154 which held that where a defendant was parole ineligible under state law at

the time of the death jury’s deliberations, penalty jury should been have informed that fact. We Ram- granted dass’ for certiorari petition and remanded the for re- case Virginia, Simmons. Ramdass v. consideration light (1994). 512 U. S. 1217

On remand, the Virginia Court affirmed Supreme Ram- dass’ death sentence, that concluding applied only if Ramdass was ineligible when the was con- jury Ramdass Commonwealth, his sentence. sidering 248 Va. (1994). E. 2d S. The court held that Ramdass was not when the parole ineligible considered his sen- tence because the Kayani murder conviction was not his third conviction for of the three-strikes purposes law. In a conclusion not here, court did challenged not count conviction robbery as one which qualified under (It three-strikes provision. appears crime did not in- volve use of a weapon.) court also held the Domino’s did not robbery count as a conviction because no final judg- ment had been entered the verdict. Thus, con- only viction to the prior Kayani murder verdict as a counting strike at the time of the trial was for the sentencing Pizza Hut robbery. Unless three-strikes law was operative, Ramdass for eligible parole because, at the time of trial, murder convicts became for eligible in 25 years. Va. Code 53.1-151(C) (1993). § Ann. Under law, state then, Ramdass was not parole at the ineligible time of sentencing; and the Court Virginia Supreme declined to apply to reverse Ramdass’ sentence.

Ramdass filed a for a petition writ of certiorari contending the Virginia Simmons, Court Supreme misapplied and Virginia, we denied certiorari. Ramdass v. 514 U. S. (1995). After an unsuccessful round of posteonvietion pro- ceedings courts, Ramdass sought habeas'corpus relief in federal court. He once more that argued the Vir- Simmons. ginia Court erred in Supreme applying District Court relief. granted (ED 28 F. 2d Supp. Va. 1998). Hie Court of Appeals reversed. 187 P. 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. (2000). Ramdass contends he was entitled to a jury instruction of parole under ineligibility Virginia three-strikes law. Rejecting contention, we now affirm.

II Petitioner bases his for request habeas corpus relief on supra. Simmons, The premise of the Simmons case was that, under South Carolina law, the capital defendant would be ineligible for if were jury to vote for a life sentence. Future dangerousness at issue, being the plural- ity opinion concluded that due process entitled the defendant to inform the jury parole ineligibility, either aby instruction or in arguments by counsel. In our later deci- sion in O’Dell v. Netherland, 521 U. S. 151, 166 (1997), we held that Simmons created a new rule for purposes Teague v. Lane, 489 U. 288 (1989). S. O’Dell reaffirmed that the States have some discretion in determining extent to which a sentencing jury should be advised of probable future custody parole status in a future dangerousness case, subject the rule of Simmons. We have not ex- tended Simmons to eases 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 governed habeas corpus statute, 28 § U. S. C. 2254(d)(1) (1994 ed., Supp. III), which forbids relief unless the state- court adjudication of a federal claim “resulted in a decision that was contrary to, or involved an unreasonable applica tion of, clearly established Federal law, as determined by Supreme Court of the United States.” As explained Justice opinion the Court O’Connor’s in Williams Taylor, 529 U. S. 362, 412-413 (2000), a state court acts con to trary clearly established federal law if it applies a legal rule prior holdings it that contradicts our or if reaches a different confronting despite from our result one of eases indistin- guishable facts. The statute also authorizes federal habeas corpus clearly if, relief law, under established federal a state applying governing legal court has been unreasonable principle to the facts of A the ease. state determination may clearly be set if, aside under this standard under estab- law, the lished federal state court was unreasonable in refus- ing legal governing principle to extend the to a context in principle Virginia which the should have controlled. The Supreme ruling Court’s in the before ease us was neither to Simmons nor an unreasonable contrary application of its rationale. indistinguishable from Sim-

Petitioner contends his case making Supreme mons, grant Court’s refusal to contrary relief to that In ease. his view the Pizza Hut con- guilty viction and the Domino’s verdict classified him, like Simmons petitioner, ineligible parole as for when the jury argument deliberated his sentence. He makes this though Virginia Supreme even Court declared that he parole ineligible was not sentencing at the time of the trial because no of conviction had been entered for Domino’scrime.

Simmons created a parole-ineligibility workable rule. The required only instruction is assuming jury when, fixes ineligible sentence at life, defendant for under state law. (plurality opinion) S., at (limiting U. hold- ing prohibits situations where “state law the defendant’s id., parole”); release on (relying n. 5 on fact that Sim- “ineligible law”); mons was id., at 176 for under state concurring) (citing J., state statutes demon- (O’Connor, strate only Simmons “the available alternative sen- tence to imprisonment death... [the] was life possi- without bility parole”). required in instruction was agreed because it was “an informing instruction petitioner that ineligible parole for is legally accurate.” Id., at 166.

In this a case, Simmons instruction would not have been accurate under the law; for the authoritative determination 'Virginia Supreme Court is petitioner was not inel- igible parole for when 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 im- posed for prior defendant’s conviction and he pleaded guilty. Ramdass’ Domino’scase was tried jury to a and no sentence had imposed. been While a South Carolina de- might fendant challenge guilty plea, a grounds doing for are so limited, see Rivers Strickland, 264 S. C. 121, 124, (1975)(“The 213 S. E. 2d 97, 98 general rule plea is that a guilty, voluntarily and understanding^ made, constitutes a nonjurisdictional waiver of defects and including defenses, claims of violation of rights constitutional prior plea”); to the see also Whetsell v. South Carolina, 276 S. C. 295, 296, 277 S. E. 2d (1981), 891, 892 and, all events, such a motion cannot seek to set aside verdict or be considered a post-trial motion, for there was no trial or jury verdict in case. 512 U. S., at 156. Simmons further does not in- dicate that South Carolina law guilty considered a plea and sentence insufficient to render the parole defendant ineligi- upon ble conviction of another crime. Material differences exist between this case and Simmons, and Virginia Su- preme Court’s decision is contrary not to the rule Simmons announced.

Ramdass arguments makes two equate his own ease with Simmons. Neither contention refutes the critical point that he ineligible was not parole as a matter of state law at the time sentencing trial. First he contends that the petitioner parole was not ineligible at the time of his sentencing trial. According to Ramdass, a South prisoner Carolina parole is not ineligible until the State parole formal determination makes Board of Probation had not done so when board ineligibility the state argu- penalty. sentencing jury This fixed Simmons’ capital argue Ram- does without merit. isment had not board eligible because dass was eligible parole at the argues was still It Ramdass acted. by criminal sentencing of his then trial reason of time the that further note state law. We under as it stood record filed argument and the record on briefs his Ramdass bases glean information by in Simmons. to failure a state court A controlling to refine here and a decision the from record necessarily the accordingly render holdings does not further appli- “contrary unreasonable ruling to, or... an state-court as Federal law determined clearly established of, cation 2254(d)(1). § On Supreme States.” Court of the United the corpus, are courts habeas state in review of state decisions principles out application of the set responsible a for faithful controlling opinion of the Court. in the prisoner to Simmons a argues allowed Second, Ramdass though “hypo- even parole-ineligibility instruction obtain (such change pardon, escape, or a as events” thetical future law) point, might prisoner would, the at some mean in the argument of no prison. This is likewise from be released The Simmons as a petitioner was, assistance to Ramdass. the parole ineligible at the time of for law, matter of state argue to future sentencing The State was left trial. permit change Sim- status or otherwise might this events society. Id., Ramdass’ 166. situation mons to reenter time of eligible parole at just the opposite. He was hypothetical argue that sentencing is forced to his trial (the convic- entry judgment on the Domino’s event future tions) ineligible law, parole under state render him would is not This case despite parole-eligible status. current point. The Simmons critical differences parallel Virginia conclusion cases foreclose between the Supreme Court’s denying decision Ramdass relief was con- trary to Simmons.

Ramdass contends Virginia Supreme Court neverthe- less hound extend Simmons to cover his circum- urges stances. He ignore us to legal rules dictating his parole eligibility under state law in favor of what he calls a approach, functional under which, it seems, court evaluates whether it looks like defendant will turn out to be ineligible. We do agree that the extension of Simmons necessary either or workable; and we are say- confident in ing that Supreme Court was not unreasonable refusing the requested extension. applies only to instances legal where, as a mat- ter, there is no possibility if decides the appropriate sentence is prison. life in proposed Petitioner’s rule require would courts to evaluate the probability fu- ture events eases 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 grant will post- verdict relief, whether a conviction will be ap- reversed on peal, or whether the defendant investigated yet uncharged crimes. prosecuted will be fully for

If the inquiry is to in- clude whether a defendant will, at point, some be released prison, from age even the or health prisoner of a facing long period of incarceration would seem pos-’ relevant. The sibilities many, are the certainties few. If Simmons rule is beyond extended when a defendant is, as a matter of state law, ineligible at the time of trial, might State well conclude that jury would be distracted from the other vital issues in the ease. The States are entitled to some latitude in this field, for the admissibility of evidence capital sentencing was, and remains, an issue left to the subject States, of course to requirements, federal especially, as relevant here, those related to the admission of mitigating evidence. Id., at 168; v. Ramos, 468 U. S. 992 California (1988). petition

By eliminating rule, Simmons' well-understood give litigation approach peripheral on a would rise to er’s may eligibility point. be unrelated to the circum Parole considering jury of the is or the stances crime the character way. except po Evidence defendant, in an indirect materiality, parole ineligibility it of uncertain as tential can if a concludes that even if defend be overcome might may escape again, paroled, he murder see ant not be to (2000); pardoned; may Jones, 529 he be he Garner v. U. S. change may change parole laws; some benefit from a other might operate to in the law invalidate conviction once Bousley thought beyond States, 523 review, see v. United (1998); society may no less a U. S. 614 or he risk to (CA11 prison, Battle, see 173 F. 3d 1343 United States (2000). 1999), Virginia denied, cert. 529 U. S. Su preme good had reason not to extend be Court yond that ease, the circumstances of which included conclu parole ineligibility proof under time sive state law at the sentencing. jury evaluating dangerousness A future under history, law considers all of the defendant’s recent criminal being pointed As have without confined convictions. we part out, the Domino’s Pizza conviction was even a prosecution’s sentencing proceedings. main in the ease ineligibility, other hand, on the does relate formal Parole proceedings. The criminal Commonwealth entitled to some in the context of own in de- deference, laws, its termining point making ineligibil- the best reference ity damaging testimony determination. Given spree upon criminal acts in the Ramdass embarked in the Kayani say just it weeks before the is difficult to murder, weight jury given possi- what should would or to the have bility parole; and it not error for the was Commonwealth parole by upon to insist an accurate assessment of the rules using measuring point. a trial court as the As we have explained, the dispositive fact in Simmons was that the defendant conclusively established ineligibility under state law the time of his trial. Ram- dass did not because judicial "Virginia determination uses to establish a conviction’sfinality under its law. We note that Virginia’s rule using judgment in the Domino’s ease to determine parole ineligibility is not arbitrary by vir tue Virginia’s also allowing evidence of the defendant’s prior criminal history. To demonstrate Ramdass’ evil char acter and his propensity to commit violent acts in the future, prosecutor used prior Ramdass’ criminal sup conduct, ported in some cases (although not in case) the Domino’s evidence in the form of the resulting jury verdicts. law did require not a guilty verdict, criminal judgment, or the exhaustion of an appeal prior before criminal conduct could be introduced at trial. Virginia law permitted instead unadjudicated prior bad acts to be introduced as evidence at trial. See Watkins v. Commonwealth, 229 Va. 469, 487,381 S. (1985). E. 2d 422, 435 For example, prosecutor was permitted to use the shooting of Selassie in aggravation, even though no verdict had been rendered in that ease. The prosecutor likewise asked Ramdass July about the murder in Alexandria. App. 64. (Despite Ramdass’ sworn denial, pleaded he guilty to the crime after being sentenced to death case.) in this The guilty verdict of in the Domino’s case, therefore, was not a necessary prerequisite to the ad missibility of the conduct underlying the Domino’s crime. Ramdass, furthermore, could object to the Common wealth’s use of the Domino’s crime at sentencing, for it he who introduced evidence. The Commonwealth did not mention the crime opening its statement and did not present evidence of the crime in its ease in chief. Ramdass used the Domino’scrime to argue he would never be out of jail; and he overused the crime even for purpose. Counsel advised the jury the Domino’scrime would result in the sentence in fact when sentence,” life

“[a]t least another Id., years. at 50. was for 18 imposed pointed are polls which we opinion to public The various by adopted Commonwealth. the upon the rule no doubt cast re- example, poll result is whose to a referred, for areWe Misper- Deathly Errors: Juror Smith, ported in Paduano & Death Imposition of the Concerning in the Parole ceptions (1987). The Rights L. Rev. 211 Penalty, Human 18 Colum. potential that 67% permit conclusion the poll said to give instead likely life sentence to more jurors be would least had to serve they defendant knew the if death eligible. being parole prison years before in proper in Court. Mere consideration this poll The is not to intro- does not to a court suffice review of a law citation hearsay the or so-called of the the truth into evidence duce the creators within it. Had contained conclusions scientific poll’s applica- support of the poll the in stand taken been poll likely have dem- would case, to tion Ramdass’ concede reporters poll’s The to inadmissible. onstrated eli- surveying scope, 40 individuals in poll was limited poll The was limited Id., at 221. gible for service. serve never county, jurors who would Georgia jurors in one supervised poll jury. The County, was Virginia, Fairfax on a group Committee, by Defense Prisoners’ Southern the inmates obtaining life having sentences an interest on- context of poll conducted represents. The it sentence. particular death litigation going of a defendant’s any independent source no article makes reference The methodology. The sampling propriety confirming of the those who to ask questions. failed It poll but four asked they did toor they views that surveyed why held the were by prose- supplied to evidence their reaction ascertain data parole information. No designed to counter cution methodology using em- framed questions were indicate regard- indication exists pollsters. No ployed reliable given to answer. were participants time ing the amount reporters poll contend other similar, limited stud- ies support the yet results, 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, deficiencieshave been upon relied by courts with fact- finding powers to exclude or minimize survey evidence. g.,E. Corp. Amstar v. Domino’s Pizza, Inc., 615 F. 2d 252, (CA5 1980) 264 (inadequate survey universe); Dreyfus Fund, Royal Inc. v. Bank Canada, 525 F. Supp. 1108, 1116 (SDNY 1981) (unreliable sampling technique); General Mo- tors Corp. v. Cadillac Marine & Boat Co.,226 Supp. F. 716, (WD 1964) 737 Mich. (only 150 people surveyed); Kingsford Products Co. v. Kingsfords, Inc., 715 Supp. F. 1013, 1016 (Kan. 1989) (sample drawn from wrong area); Conagra, Inc. v. Geo. A. Hormel & Co., 784 (Neb. F. Supp. 1992) 700, 726 (survey failed to ask the why reasons the participant pro- vided the selected); answer he Sterling Drug, Inc. Bayer v. AG, 792 F. Supp. (SDNY 1992) 1373 (questions not properly drafted); American Home Corp. Products v. Proc- tor & Gamble Co., (NJ 871 F. Supp. 1994) 739, 761 (respond- given ents extended time answer); to Gucci v. Shops, Gucci Inc., 688 (SDNY F. Supp. 916, 1988) 926 (surveys should be conducted by recognized independent experts); Schering Corp. v. Schering Aktiengesellschaft, 667 F. Supp. 175, (NJ 1987) (attorney contact and interference invalidates poll); see generally Toys “R” Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 Supp. F. (EDNY1983) (listing factors to consider in determining whether a survey reliable). poll reported in Columbia Human Rights Law Review should not be considered this Court. See Stanford Kentucky, (1989) U. S. 361,377 (plurality opinion). It is Supreme Court’s decision rejecting Ramdass’ claims that is under review in this habeas proceeding. It was required public consult opinion polls.

Ramdass’ claim is based on the contention that it is in- evitable that a judgment of conviction would be entered for judgment follow- entry of He calls crime. Domino’s performance whose act “ministerial

ing jury verdict Petitioner for Brief inexorable.” imminent, and foreseeable, proposition authority no eites Petitioner 21,36. should judgment that final determination judicial officer’s judg- noting (as the final the clerk’s opposed to entered record) sur- are not We act. ministerial is a ment a criminal consider lawyers would most doubt prised. We entered, judgment is trial court before in the case concluded has become ease signals that the which for it is proceed- stage of another reach end or is about final and (1999) (requiring no- 5A:6 Sup. 1:1, Rule Ct. ings. See Va. entry of final days after 30 “within to be filed appeal of tice judgment”). crimi- Virginia part of essential are an motions

Post-trial as leading such treatises discussed practice, as nal law (2d ed. 829 and Procedure Law Virginia Criminal Costello, J. (2d 337 Procedure 1995), Virginia Criminal Bacigal, and R. 3A:15(b) 1989). Supreme Virginia Rule Court Under ed. com- error “for (1999), may set aside guilty be a verdict of aas is insufficient if the evidence during or the trial mitted examples A few a conviction.” to sustain matter law it to be Virginia demonstrate decisions reports from the Virginia trial courts procedure in well-established g., jury E. verdicts. aside to set grant motions consider E.S. 576-577, 249 575, Commonwealth, 219 Va. Floyd v. 601, (1978); Commonwealth, 220 Va. Payne v. 172 171, 2d (1979); v. Common- Johnson 247, 248 E. 2d S. 602-603, 260 (1995); 601 599, E. 2d 458 S. App. 547, 553, wealth, 20 Va. E. 2d App. 291, 356 S. 286, 4 Commonwealth, Va. v. Walker App. 673, Commonwealth, (1987); 15 Va. v. Gorham 853, 856 (1993); Commonwealth, Carter v. 493, E. 2d 674, S. (1990); Cullen 639, 640 E. 2d S. App. 509, 393 507, 10 Va. 2dE. 409 S. App. 182, 184, 13 Va. Commonwealth, (1991). The motion to set may aside be filed and resolved before judgment is g., entered, e. supra, Walker, at 291, 356 S. E. 2d, at 856, and trial courts may conduct hearings or allow evidence to be introduced on these motions. Postverdiet may motions granted despite the denial of a motion to strike the evidence made during g., trial, e. supra, Gorham, at 674, 426S. E. 2d, at 494, or after denial pretrial of a motion to dismiss, Cullen, supra, at 184, 409 S. E. 2d, at 488. Fed judges eral familiar with Virginia practice have held that postverdiet give motions a defendant a full and fair oppor tunity to raise claims of trial error, DiPaola v. Riddle, 581 F. (CA4 2d 1111, 1113 1978). In beyond contexts the three- strikes statute, courts have held that the possibility postverdiet relief renders a verdict uncertain and un reliable until judgment g., entered. E. Dowell v. Com monwealth, 12 Va. App. 1145, 408 S. E. 2d (1991); 263, 265 see also Smith v. Commonwealth, 134 Va. 589,113 S. E. 707 (1922);Blair v. Commonwealth, 66 Va. (1874) 850, 858, 861 (availability postverdiet motions means it is at the defend option ant’s 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 petitioner’s con tention here, that it an “incorrect statement of the law” to say that trial eourt has no concern with pro ceedings after jury’s the verdict. Davis v. Commonwealth, No. 2960-98-2, 2000 WL (Va. 135148, *4, n. App., Feb. 2000) (unpublished).

The time for Ramdass a file motion to set aside the Domino’sverdict had expired not when the jury was deliber- ating on sentence Kayani’s for murder; and he concedes he could have filed postverdiet motions. The Domino’s ease was pending in a different county from Kayani the murder trial and the record contains no indication that Ramdass’ counsel advised the judge in Kayani the case that he would pursue not postverdiet relief in the Domino’s case. The Virginia Supreme Court was reasonable to reject parole- a become would who a defendant for instruction

ineligibility county different in a judge a trial only event the ineligible in case. criminal unrelated in an judgment final entered se- Supreme Court’s the that complains Ramdass jury verdict the than judgment rather entry of the of lection may the set court a trial that points out arbitrary. He is Sup. entry. Ct. Va. days its after within aside agree with permitted. We (1999). also is Appeal 1:1 Rule the in relief postjudgment availability of the that Ramdass finality and uncertain renders appeal or on court trial own Our trial court. judgment in reliability of even example, does Lane, for Teague v. jurisprudence under di- until the final conviction Virginia-state-eourt consider Netherland, 521 O’Dell completed. is process review rect we approaches may take different States S., at 157. U. a State require would rule that support for a no see a three-strikes purposes for final a conviction declare may be Verdicts rendered. has been once a verdict statute appellate by state court, trial by state overturned col- court on by a state court, supreme by the state court, corpus, or habeas in by a federal court attack, lateral Virginia’s proceedings. any of these review on Court this de- instruction permit a Simmons would which approach, might, the relief availability postjudgment spite the pa- is the defendant instructed day after in- supporting the strikes one ineligible, undo role judg- A protection. sufficient provided Ramdass struction, finality measure usual verdict, is the anot ment, court. trial con- petitioner’s by a review of is confirmed conclusion

Our certain it elaim that current litigation. The in this duct released never would that Ramdass trial time of at to life belied him jury sentenced event parole in the sentencing. him from elicited testimony counsel by the spend going to you him, “Are asked counsel Ramdass’ advanced claim Despite prison?” your life rest now parole that would impossible, the answer counsel elic- ited from Ramdass at trial was, “I don’t know.” We think Ramdass’ answer at trial is an accurate assessment of the uncertainties that surrounded parole his and custody status at the time of trial. In like manner, before "Virginia Supreme Court’s decision now challenged as unreasonable, petitioner argued had not that eligibility should have been determined based on the date of the Domino’s verdict 1993) (January 7, rather than the date was entered 1993). (February 18, He did not mention the three-strikes law at trial, although the Domino’sverdict had already been returned. Petitioner’s brief to 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 “[o]f course, the ... 18 February convietio[n] occurred after the jury findings in this case.” App. 123-124. Thus the Virginia Supreme Court treated the Domino’sconviction in the urged maimer 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 petitioner task, began arguing that the date of the jury verdict controlled. His original position, however, is the one in accord with Virginia law.

State judges trial and appellate courts remain free, of course, to experiment by adopting rules go beyond the requirements minimum of the Constitution. In regard, this we note that the jury was not informed that Ramdass, at the time of trial, eligible years, that the trial judge had power to override a recommended death sentence, or that prior Ramdass’ subject convictions were being set aside the trial court appeal. or on Each state- ment would have been accurate as a matter of law, but each statement might also have made it probable more that the fur-We sentence. a death

jury recommended have would allowing by expanded Simmons Virginia has ther note where even instruction a Simmons to defendant obtain Yarbrough at issue. dangerousness is not future defendant’s (1999). 2dE.S. 347, 519 Va. Commonwealth, 258 conviction, eliminated after Virginia has, Ramdass’ Likewise, prison. in to life sentenced capital defendants parole for Yarbrough elimination and the combination The Virginia now receive in capital defendants that all means circumstances In they so desire. if instruction Simmons had instruction if some here, presented even like those ex- Simmons, the by subject addressed given been con- addressed have court should which the trial to tent convictions finality other affect tingencies could the various elaboration altogether A full clear. not might trial grant newa or aside ways conviction set a to all events In petitioner. to the favorable been not have that Ramdass the instruction require not does Constitution invalid proceeding was sentencing requests. The now omission. reason of its Ill deny petitioner Supreme decision The Court’s applica- contrary unreasonable to, nor an relief neither was Appeals for Court United States of, tion Simmons. under deny relief him required to Circuit the Fourth Ill), (1994 affirm Supp. §2254 and we ed. and 28 U. S. C. judgment. is so ordered.

It in the O’Connor, judgment. concurring Justice (1994), 512 U. Carolina, S. v. South In puts “[w]here the State majority held that of the Court only avail- dangerousness issue, in future defendant’s imprisonment with- life to death sentence able alternative defendant process parole, entitles due possibility of out to inform the capital sentencing . . . that he is Id., at 178 (O’Connor, ineligible.” J., concurring judg- ment); see also id., at 163-164 (plurality opinion). Due proc- ess requires that “a defendant not be sentenced to death ‘on the basis of information which he had no opportunity deny ” or explain.’ Id., at 175 (O’Connor, J., concurring judg- ment) Skipper (quoting v. South Carolina, 476 U. S. 1, 5, n. 1 (1986)). Accordingly, where the State seeks to demon- strate that the defendant poses a future to danger society, he “should be allowed to bring his parole to ineligibility the jury’s attention” as a means of the rebutting State’s case. 512 S.,U. at 177. I have no doubt that Simmons was rightly decided.

In this case, because petitioner seeks a writ of habeas cor- pus rather than the vaeatur of his sentence on direct appeal, the scope our review is governed by 28 U. § S. C. 2254(d)(1) (1994 ed., III). Supp. Accordingly, we may grant relief only if the Virginia Supreme Court’s decision “was to, or contrary involved an unreasonable application of, clearly established Federal law, as determined Supreme Court of the United States,” ibid.; see also Williams Taylor, v. 529 U. S. 362, 402-409 (2000), which in this case is our holding Simmons.

The Virginia Supreme Court concluded that Simmons was inapplicable because petitioner “was not ineligible for parole when the jury was his considering sentence.” Ramdass Commonwealth, 248 Va. 518,521,450 S. E. 2d 360,361 (1994). The court noted that, under law, Virginia any person who has been convicted of three separate felony offenses of mur- der, or rape, 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 time of his capital sentencing pro- ceeding 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 res- Pizza robbery Domino’s aof armed guilty

found prior conviction as a count not did verdict taurant, yet been not 58.1-151(B1) had judgment § because under capital sen- of Ramdass’ time at the that verdict entered 2d, at 361. E.S. 520,450 atVa., proceeding. tencing opinion, the Vir- plurality explained in the reasons For contrary nor to, neither decision Supreme Court’s ginia holding in Simmons. of, our application an unreasonable he is jury that inform entitled defendant Whether law, but federal ultimately question of ineligible is parole status. parole a defendant’s determine to state law we look establish[ed]” “conclusively had defendant Simmons, the In sentencing, and time of ineligible at the he was [his] parole question challenge or did not “prosecution however, was Ramdass, 158. S., at ineligibility.” U. sen- jury considered when ineligible for not judgment yet entered had court as the relevant tence robbery. Were Pizza Domino’s of conviction under act ministerial purely entry agree with I would foreordained, that it was sense in the law, sentence only alternative “the available petitioner that parole.” of possibility without imprisonment [was] life death Such judgment). concurring in J., at Id., (O’Connor, from indistinguishable” “materially be would circumstances at Taylor, S.,U. v. See Williams Simmons. facts of “contrary to” Simmons been have It would therefore 405. petitioner was to hold that Virginia Supreme Court for the ineli- parole be he would jury that entitled inform not a defend- between that stands all ibid. Where gible. See minis- purely is a law ineligibility state under parole ant jury to inform defendant entitles act, Simmons terial even instruction, argument or by ineligibility, either of that ineligible” moment at the “parole technically if is not he sentencing. plurality As the however. here, the ease not was

Such following a criminal entry judgment explains, the opinion "Virginia conviction in state court is purely not a ministerial act, e., i. one that is inevitable and foreordained under state law. The Commonwealth allows criminal defendants to file post-trial following motions guilty a verdict, and trial courts may set jury aside response verdicts in to such motions. ante, See at 173-175. as Thus, "Virginia matter of law, guilty verdict does inevitably lead entry to the judg- of a ment order. Consequently, jury finding verdict peti- tioner guilty of the Domino’s robbery Pizza did not mean petitioner that necessarily would parole ineligible under state petitioner law. Indeed, himself concedes that there was "possibility that the Domino’s Pizza judge trial could set aside the "Virginia verdict under Supreme Court Rule 3A:15(b).” Brief for Petitioner 37.

Petitioner nevertheless contends that possibility that the trial court would set aside guilty verdict for the Domino’s robbery Pizza quite was remote, and therefore entry extremely was likely. But, as the plurality opinion explains, require does not courts to estimate the likelihood of contingencies future con- cerning the parole defendant’s ineligibility. Rather, Sim- mons entitles the defendant to capital inform the sentencing that he is ineligible only where the alternative sentence to death is life without possibility parole. And unlike the defendant in Simmons, Ramdass eligible under state law the time of sentencing.

For these agree reasons, I petitioner is not entitled to issuance of a writ of corpus. habeas As our decision in Williams Taylor makes clear, the standard of review 2254(d)(1) (1994 § dictated Ill) U.S.C. Supp. ed., narrower than applicable that on direct Applying review. here, standard I believe the Supreme Court’s decision contrary was neither to, nor an ap- unreasonable plication our holding of, in Simmons. Accordingly, I concur judgment. in the

Justice Justice Stevens, Souter, whom Justice with Breyer Justice Ginsburg, and join, dissenting. rely permitting

There is an State to acute unfairness in aon recent conviction to a defendant’s future dan- establish gerousness simultaneously to permitting while State deny that the defendant there was such conviction when attempts argue ineligible therefore that he is danger. miserly reading not a future Even the most opinions in Carolina, 512 U. S. Simmons South (1994), supports petitioner this was denied conclusion that adversary sys- process “one the hallmarks of due in our namely, right tem,” the State’s defendant’s “to meet against concurring case Id., him.” at J., (O’Connor, judgment).

I “[w]hen In Simmons, held that to show we State seeks dangerousness the defendant’s future . . the defendant . n bring ineligibility should be allowed to to the jury’s -by way argument counsel defense or attention— responding an instruction from court—as a means of showing dangerousness.” the State’s Id., of future at 177 concurring judgment). present (O’Connor, J., The case squarely falls holding. our within question

There is argued no Commonwealth dangerousness. future doing Ante, Ramdass’ In so, at 161. entirely it focused almost on Ramdass’ extensive criminal history, emphasizing spree that his most recent crime mandatory committed parole.1 after his Indeed, release prosecution’s 1The argument opening began by recounting Ramdass’ entire criminal history. App. 8-11. of the nine Eight witnesses Commonwealth called did little than more relate the details Ram- Id., - dass’ criminal at past. 12-64. prosecution’s closing argument highlighted the connection between Ramdass’ re prior crimes and his Id., leases from prison. fact, 80-82. In it did so on several occasions. Id., (Ramdass 9at “served time arm robbery [for convic strong 1992”); id., (Ramdass tion] and was finally paroled in May of at 46-47 “was prosecution relied the Domino’s upon Pizza robbery —the very crime Virginia has precluded Ramdass from relying to establish upon his parole ineligibility.2 There is also no that Ramdass question was denied the to opportunity inform the jury parole ineligibility. During sentencing deliberations, asked the fol- lowing question: “[I]f Defendant life, given is there a possibility of at some time before his natural death?” 88. App. Rather than giving kind of any straightforward answer, rather than counsel to permitting explain peti- tioner’s parole court ineligibility, instructed: “[Y]ou should such impose as punishment you feel is just under the evidence .... You are not to concern with yourselves what may happen afterwards.” Id., at 91. it is

Finally, undisputed the absence of a in clear struction made a difference. The itself question demon strates that parole was ineligibility important the jury, and that the jury was confused about whether a' “life” sen tence truly means life —or whether it means life subject released on mandatory parole” 1992, in shortly before his most recent crime spree id., began); at 51b-52 (describing Ramdass’ 1992 release mandatory parole). 2Id., (“On at 57-59 that next night, 30th, August you robbery did a the Domino’sPizza over in Alexandria? . . Well, . if the cab driver shot in the head on August 30th and Domino’sPizza was August 30th, you did them both the same day; id., didn’t you?”); at (“August 30th, 1992, he robbed Domino’sPizza at the point a gun in Alexandria and he robbed Domino’sPizza long after he shot that Arlington cab driver head...”). through the Of course, Simmons v. Carolina, South S.U. 154 (1994), applies when prosecution argues future dangerousness; it does not require State to argue any particular past My crime. purpose in pointing out Virginia’sreliance on the Domino’sPizza verdict tois underscore the un- fairness of permitting it, to use while denying Ramdass the same use. The plurality’s repeated statement that Virginia brought up the crime in its cross-examination rather chief, ante, than its case 170, 171, neither means Simmons is nor inapplicable mitigates the un- fairness here. It only signals the formalism the plurality prepared to endorse. at 178 possibility parole. Simmons, S., 512 U. See (“[T]hat jury in concurring judgment) J., (O’Connor, parole was available compelled case felt to ask whether

this life- jurors or not a that did not know whether shows the prison”). More from sentenced defendant will be released [jury] critically, jurors that “if the knew three said prison, they gotten [Ramdass] would have never out of would given App. 95. Two of him life rather than death.” have among all them have been the result stated “that would [the jurors] beyond question, they had that if had infor given they Ibid. But weren’t told or mation.” “because they perception the answer that he would be . . . all had a paroled.” Ibid.3 light

After we of Sim- remanded for reconsideration Virginia Supreme not mons, the held that ease did Court apply “ineligible parole because when Ramdass was not for jury considering the was his sentence.” Ramdass v. Com- (1994). monwealth, 518, 520, 450 E. 2d 361 Va. S. applicable Virginia requires The three strikes for statute jury ineligible. to be that the defendant “At the time considering January penalty 30,1993,” Ramdass’s the ineligible parole” court held, Ramdass for because “was only robbery against he had two strikes him—the Pizza Hut capital robbery the instant murder. Ibid. Ramdass’ the Domino’s Pizza did his third even strike, not count as though jury already guilty. in that case had found him Technically, under state not count as a “con- law, that did Virginia’s viction,” because definition of “conviction” not just guilty requires verdict. Rather, a “conviction” also piece paper signed by judge entering into the verdict Simmons’ again, Once does not at all turn on whether this applicability kind of point evidence exists. I it out how real the only emphasize essence, concerns are here. The plurality complains, the evidence came in the form of an rather than as a proffer uncontested Ante, neither Simmons’ sworn affidavit. at 163. nor Again, applicability reality of the only case is undercut this The that it quibble. thing proves is plurality's penchant for formalism.

the record. Id., at 450 E. 520-521, 2d, at S. The 361. trial judge signed entry of the in the Domino’sPizza days case after end sentencing phase in Ram- capital dass’ proceeding. murder Ante, at Therefore, 160. Supreme Court held that at the time “when the jury was considering [petitioner’s] sentence” in capital murder ease, ineligible Ramdass was “not parole” for under state law, and thus inapplicable. Simmons was

1—IJ-H plurality begins by stating what it thinks is the rule established in Simmons: “The parole-ineligibility instruction required only assuming when, fixes the sentence at life, the defendant is ineligible under state law.” Ante, at plurality 166. The proviso: also a adds defend- The ant parole must be ineligible at sentencing.4 the time of Given that understanding, plurality says the “[m]aterial dif- ferences exist between this case and Simmons.” Ante, at 167. But the differences to plurality which points the not do distinguish this case from Simmons.

The first asserted distinction is that, as the Su- preme Court stated, parole Ramdass was not ineligible under state law at the sentencing. time might Ramdass 4Though the plurality does not include the proviso in initial its state- ment of the in Simmons, rule it repeats this requirement no less than 20 times in its 20-page ante, (“when opinion. See at 159 the con- jury sidered case”), (“at his 161 the time of the capital trial”), sentencing (“at 163-164 the time of the jury’s death penalty deliberations”), 164 (“when ibid, the jury was considering (“at his sentence”), the time ibid, (“at ibid, sentencing trial”), (“at trial”), time of his time (“at sentencing”), 165 the time of the jury’s future dangerousness delibera- (“when ibid, tions”), 166 the jury (“at deliberated sentence”), his time trial”), (“when sentencing 167 the jury considered his sentence”), ibid, (“at ibid, (“at time of sentencing”), time his sentencing ibid, ibid, trial”), (“at (same), 168 the time of the trial”), sentencing (same), ibid, (“at the time (“at of his trial”), sentencing 169 trial”), the time of his (“at 171 (“at time of trial”), trial”). the time of parole ineligible

have become at some date, later but at the exact deliberating moment the yet that was not so. is, trouble that is distinguishes not a fact that Ramdass’ from ease Simmons’.

In parole Simmons, the relevant statute was S. C. Code §24-21-640 1998). Ann. (Supp. See Simmons, 512 S.,U. at concurring judgment) J., (citing South (O’Connor, law); parole Carolina also (plurality id., see opinion) (same).5 Under that statute, it was the South Carolina Board of Probation, Parole, and Pardon that deter- Services mined parole a eligibility defendant’s that determina- —and tion would come sentencing phase. Then-current after n South Carolina case unambiguously law eligi- stated that the bility determination by would not be made at but trial, parole board.6 required Moreover, the statute board to find that prior the defendant’s convictions were not "pursuant committed to one continuous course of conduct,” and it was no means certain that the board would ulti- mately reach that fact, conclusion. In in Simmons the State of South steadfastly Carolina maintained that Simmons was truly parole ineligible at the time sentencing of his

5That statute read in “The part: board must not grant parole nor is authorized, to any prisoner serving sentence for a second or subsequent conviction, following separate sentencing prior convic tion, for violent crimes as defined Section 16-1-60. Provided where more than one included offense shall committed one-day within a period or to one pursuant conduct, continuous course of such of multiple fenses must be treated for purposes of this section as one offense.” 6See, g., e. State v. McKay, 113, 115, 300 S. C. 623,623-624 S. E. 2d (1989). true, It is plurality points out, ante, as 167, at the defendant did an have entry But, of judgment. under plurality’s reasoning, the issue is whether is defendant parole ineligible at the time sentencing, why he is or is not Thus, ineligible. whether the of defendant is parole eligible at that time because he has no entry judg- ment or because the parole board has not yet met is relevant. It hardly distinction, is a but not a material one. 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 sen- tencing not a fact simply that distinguishes Simmons from Ramdass’ ease.8 7“First and foremost, at the time trial, no state agency had ever determined that Simmons was going to be serving 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 determi did not nation rest with the judiciary, but was solely vested an execu tive branch agency, the South Carolina of Probation, Board Parole and Pardon Services.” Brief for Respondent in Carolina, Simmons South T. No. 92-9059, O. p. 95 (emphasis added). The plurality also complains that “a state court [need glean not] infor- mation from the record” in Ante, Simmons. at 168. true, That is but it is equally true that a state court pretend cannot that a fact creates material distinction simply because it was not expressly raised and re- jected by this Court. Moreover, it is evident in opinion itself that Simmons’ parole-ineligibility status had not been definitively and legally yet determined at the time of sentencing. 8,n. See infra. 8The plurality contends that in Simmons “the defendant had ‘con clusively established’ his parole ineligibility at the time of sentencing.” Ante, at 167 (quoting Simmons, S., 512 U. at 158 (plurality opinion));see also ante, at 171. What Simmons in fact said was that no questioned one that the defendant had all the facts necessary to be ineligible found at some future date. It does not indicate that a legal determination of the parole defendant’s ineligibility had already been definitively by made parole board. This is dear in the plurality’s dtation of the South Carolina parole statute, under which a defendant’s parole status is determined the parole at board a later date. supra, See at 186. This dear also from the fact that the plurality upon relied testimony parole board’s attorneys, S., 158-159, U. demonstrating plurality’s rec ognition that it was board that would ultimately determine Simmons’ eligibility. Furthermore, the plurality’s statement that Simmons was id., “in ineligible,” at 158 (emphasis added), as fact opposed to “legally” ineligible or ineligible law,” “as matter dearly distin guished between the facts as (which known at that time indicated how Simmons’ would, status in all likelihood, ultimately be determined), and the legal (which determination of status would formally determined at that

Perhaps shifts recognizing problem, plurality It is not, says, whether ground. plurality “only” parole under state law has been “at ineligibility determined of time whether there is “no but sentencing,” possibility” Ante, at that time. at 169. In parole other eligibility that words, the there says when plurality applies sentencing at time is “conclusive that the de- proof” (in future) fendant will be found in- “inevitabl[y]” Ante, 170,173-174. at In eligible. case, Ramdass’ the plu- inevitably continues, he would not rality be parole ineligible, because, law, under his Domino’s Pizza ver- robbery dict could have been set aside under Virginia Court Supreme 3A:15(b) (1999). Rule That Rule a trial court to set permits aside a verdict to 21 after guilty final up has days Ante, been entered. at 174-175.9 But this is not fact again, Ramdass’ distinguishes ease from Simmons’. Like South Carolina Virginia, permit- (and ted still the court to entertain mo- permits) post-trial tions set aside a verdict such a motion could have date). a later Finally, if Simmons’ had ineligibility been legally and conclusively trial, resolved by the time of his there would have been (and no need for the plurality to discuss reject) possibilities that might have undermined Simmons’ eventual finding parole ineligibility. See infra, at 201-203. The Simmons plurality did “an say that instruction the jury informing petitioner is ineligible for parole S., accurate.” 512 U. legally at ante, 166; at 166-167. But in the very next sentence the plurality wrote:

“Certainly, such an instruction is more accurate than no instruction at added). S., all.” 512 U. (emphasis This made it clear that “accu- racy,” there, term, the sense used is a relative not an absolute conclusive determination of status. legal 3A:15(b) At the trial, time of Ramdass’ Rule read: “(b) Motion to Set Aside the jury Verdict.—If returns a verdict of guilty, the may, court motion made accused not later than 21 days entry order, after of a final set aside the verdict for error committed during the trial or if the evidence is insufficient as a matter of law sustain a conviction.”

been filed Simmons’ case.10 If the of such availability a makes post-trial procedure Ramdass’ parole ineligibility less than inevitable, the same also must have been true for Simmons.11 the mere Accordingly, of such a availability is not a fact that procedure the two distinguishes cases. In the end, does though, not plurality rest really upon at all, nor inevitability of upon alleged lack inevitability represented motion post-trial Instead, procedure. relies plurality fact that at the time of upon Ramdass’ sentencing phase, had although rendered a guilty verdict in the Pizza Domino’s case, the robbery trial judge had not yet entered Ante, on the judgment verdict. at 160, 167, 173-174, 176. That of would come entry 19 judgment Ante, later. days at 160. The distinction is important, plurality because says, "[a] not a judgment, is the verdict, usual measure for court,” ante, at 176, in the trial finality whereas a verdict “uncertain,” ibid. a without judgment The is, course, plurality correct missing entry ais circumstance that judgment Simmons. was not present 29(b) South (1999) Carolina Rule of Criminal reads, Procedure in rele vant part: “A motion for a new trial based on after-discovered evidence must be within made period reasonable of time after the discovery of the evidence.” true, course, It that a motion for a new trial under Caro South lina’s rule be predicated must on the evidence, discovery of new but that does not meaningfully its distinguish rule, rule from Virginia’s under which a can verdict only set aside for trial error or insufficient evidence. The plurality says that because pleaded guilty to prior crime, he was foreclosed from filing motion under South Carolina’s rule. Ante, at 167. For this proposition, State, the plurality cites Whetsell v. (1981). 295, 276 S. C. 277 S. E. just 2d This is John- wrong. flat See Catoe, son S. 354,358-359,520 (1999) 336 C. S. 617,619 E. 2d <“Whetsell does not for stand the proposition that a defendant who guilt admits his is barred from collaterally attacking his conviction. Whetsell stands only for the proposition narrow that a [postconviction applicant relief] who has pled guilty on advice of counsel satisfy cannot prong on col- prejudice lateral if event”). attack he states he would pled have in any guilty plurality’s But the entirely unsupported assertion that an entry judgment just is more “certain” than a verdict is wrong. flat

The plurality’s sole basis for the conclusion that the Domi- no’s Pizza verdict possibility is uncertain is the that it could 3A:15(b). be set aside under Rule But under that Rule, guilty may verdict judgment be set aside even has been after supra. entered. See n. plurality has cited not a single suggesting case that the setting standard aside a 3A:15(b) verdict under Rule varies depending on whether or has been Accordingly, entered. verdict a susceptible 3A:15(b) that is being set aside Rule under no more or simply less judgment certain because has been entered on that degree verdict; whatever uncertainty of it is, is identical in both In judgment cases. whether short, has been entered on the absolutely verdict bearing has no on the verdict’s “uncertainty.” plurality cites 11 support argu- cases to its 3A:15(b)

ment that Rule puts shaky ground. a on verdict Ante, at 174-175. The authorities are less than over- whelming. Only 2 of actually those 11 cases mention Rule 3A:15(b),12and one of those does so in dicta in a footnote unpublished in the decision an intermediate state court.13 Four others make passing post- reference to some sort of trial motion only denied, was but do so in the context of reciting procedural history of the case under review.14 12 Dowell Commonwealth, 12 v. App. 1145, Va. 408 S. (1991); E. 2d 263 Davis v. Commonwealth, 2960-98-2,2000 (Va. No. WL 135148 App., Feb. 2000) 8, (unpublished). 13 id., See *4, n. 1. 14Floyd v. Commonwealth, 575, 577, 249 219 (1978) 171, 172 Va. E.S. 2d (“Overruling Floyd’s motions to set ..., aside the verdicts the trial court entered judgments verdicts”); Commonwealth, Johnson v. 20 Va. 547, 552,458 App. (“At 599, (1995) S. E. 2d 601 Johnson’s sentencing hear ing, defense counsel made a motion to set aside the verdict.... The trial judge motion”); denied the Commonwealth, Walker 4 Va. 286,291, App. 356 S. (1987) E. 853, (“After 2d the jury discharged, was defendant Another ease passing also makes reference to the denial post-trial a motion, but it is clear from the fact that the (which motion predicated on "new evidence” is not a 3A:15(b) basis for Rule supra) motion, 9, see n. and was made four months after the verdict that the motion was certainly 3A:15(b).15 almost not based on Ultimately, Rule plurality points only three cases to demonstrate that "a [is] verdict uncertain and judgment unreliable until is entered.” Ante, (citing at 175 Dowell v. Commonwealth, App. (1991) Va. (men 1145, 1149, 408 S. E. 2d tioning 3A:15(b)); Rule Smith v. Commonwealth, 134 Va. (1922); 589, 113S. E. 707 Blair v. Commonwealth, 66 Va. 850 (1874)). (1) What these cases hold, however, that a ver dict without entry an may pur not be used for poses (2) of impeaching a credibility; witness’ may same not be used purposes aof permitting statute the re public moval from any person officeof “convicted anof act... involving (3) turpitude”; moral but pardon Governor can prisoner after a verdict entry judgment. before Not one of actually 3A:15(b) them involves a Rule motion, remotely nor says that verdict itself is “unreliable.”16 The moved the court to set aside the verdict; the court denied motion”); Carter v. Commonwealth, 10 Va. 507,509,393 App. (1990) S. E. 639,640 2d (“Carter . . . appeals from judgments of the Circuit Court of Loudoun County... which ... denied post-trial trial”). motions for a new 15 Payne v. Commonwealth, 601, Va. 602-603, 247, 260 S. E. 2d (1979). 16 Dowell does say that a verdict without a judgment is not “for reliable impeachment purposes,” 12 1149,408 Va. at App., 2d, E. 265, S. at but this is a far cry from saying the verdict is itself unreliable. What the three cases actually address is the question whether a verdiet is “conviction” a law; under state they say it that depends context, on the answering in the negative in cases, two in and the affirmative in a third. The plurality also cites two intermediate state-court cases making pass- ing reference to a trial court’s granting post-trial motion, though nei- ther 3A:15(b). case mentions Rule Commonwealth, Gorham v. See 15 Va. 673, App. 426 S. E. (1993); 2d 493 Commonwealth, Cullen 13 Va. App. 182,409 (1991).' S. E. 2d 487 But a mere two cases all the among criminal

plurality scrounges support, to find case law but the result barely registers on the radar screen. plurality

Furthermore, the thinks that there is “no author- ity” proposition entry judgment generally for the that is In a Ante, considered to be “ministerial” matter. at 174. 'Virginia Supreme related Court has context, however, the observed: distinguished judgment

“The rendition of a to be from is entry judgment in its The rendition of is records. judicial entry judg- the court, act of whereas the of a ment the clerk on the of the court is a min- records judicial, entry isterial, and not a act.. . . The or recor- dation of such an order book‘is the instrument an an ministerial act of the and does not constitute clerk integral part judgment.” Bazile, 205 Rollins v. (1964) (citations 613, Va. 114, 139 E. 2d and S. omitted). quotation internal marks any point In event, there is a more critical be made plurality’s rely- entry-of-judgment about the In distinction. ing plurality necessarily distinction, abandon- ing very understanding purports it Simmons that following. explained be As above, to the extent that the 3A:15(b) availability of Rule motions undermines the in- (and evitability prior of a defendant’s verdicts therefore his parole ineligibility) state law, under it does so whether or why has been entered on the verdict. So entry it that apply Simmons does not when there is no judgment? simply

The answer law, cannot be under state that, sentencing, inevitably the time of the defendant will not eases Virginia surely by post- aside a setting demonstrates verdict uncertain, trial motion rarity; is a if those verdict two instances make the then one might as well cite the granted case in which the Governor solitary a pardon after the verdict but Blair the of See entry judgment. before Commonwealth, (1874). 66 Va. found the of the is parole ineligible: inevitability verdict undermined, or with without the and the equally judgment; defendant is for under state law if ver- eligible the dict is set aside, of whether it is regardless set aside before or after is entered. fact, In the judgment though, plurality makes no really attempt explain entry-of-judgment distinction in terms of either the at-the-time-of-senteneing- rule, under-staté-law or in terms of the inevitable-under- Rather, state-law rule. of significance entry more rests the assertion that a judgment upon judgment certain than a verdict. The line, entry-of-judgment then, is about relative of really degrees certainty regarding parole ineligibility.17

If the is not one which state law controls question (by to the defendant’s looking determined status conclusively either at the time of or thereafter), sentencing inevitably of Simmons’ must be an of question issue applicability federal due law. That is a process with which proposition indeed, I agree entirely; itself makes that perfectly what Simmons’ as I clear, discuss below. Before examining Though plurality insists that judgment “is the usual measure for ante, finality,” 176, at its own opinion reveals that it does mean “final any Rather, ity” absolute sense. it concedes that while a “jury verdict uncertain,” ante, at too, [isl “even a judgment” is “uncertain” because ante, of availability relief,” "the of postjudgment means, at 176. What it it though is not particularly candid about that a judgment it —is then — more certain than a verdict. Put differently, the plurality judg thinks a ment is more in that is a probability enduring, greater there that a verdict will survive motion it to set aside if there has already entry been an judgment. It is dear that the significance entry judgment plurality for must be based on that belief significance be cannot that without entry of judgment defendant is not ineligible parole at the exact moment above, as sentencing; explained fact is not dispositive. supra, See 185-187. Nor can its significance entry that without of judgment, above, is not status inevitable. As also explained the entry of has no significance insofar as is con- inevitability cerned. See supra, at 188-192 and this page. process requirements

due important entail, however, it is to understand the rationale behind capi- Simmons: the need for sentencing juries tal to have accurate information about particular defendant area eligibility. of

I—*H-i (1976): Gregg We m stated Georgia, v. 428 U. S. 153 experienced “If an judge, daily trial who faces the diffi- cult task imposing of sentences, has a vital need for ac- curate information about defendant and the crime he committed in order to impose be able to a rational sen- tence typical in the case, criminal then accurate sentenc- ing indispensable information is an prerequisite to a rea- soned determination of whether a defendant shall live by jury or die people may who never before have sentencing made a (joint Id., decision.” at opinion of Stewart, Powell, and JJ.). Stevens, imperative This all is the more critical when the jury must make a as dangerousness. determination to future “[A]ny sentencing authority predict must person’s prob- convicted able future engages conduct when it process of de- termining what impose.... to sentence isWhat essential is that the possible have before it all relevant information about the individual defendant whose fate it must deter- mine.” (1976) Jurek Texas, v. (joint U. S. 274-276 opinion JJ.). Stewart, Powell, and Stevens, When it comes to issues dangerousness such as future possi- and the bility parole, vitally it therefore important that “the jury [have] accurate information of which both the defend- ant and his counsel are including aware,” “an accurate state- potential ment aof sentencing alternative.” California (1983). Ramos, 463 U. S. 992, 1004,1009 say, This not to of course, that the compels Constitution jury every States to tell the single piece of information may be relevant to its g., See, deliberations. id., e. at 1010-1012. Indeed, in v. Ramos, we it held ordi- California narily proper “defe[r] to the State’s choice of substantive factors penalty relevant determination.” Id., 1001. Notwithstanding the broad discretion recognized in Ramos, the latitude to-which the States are entitled is not un- bounded; at give times, it way must to the demands due process.

One process such due requirement is that a defendant must have an opportunity to rebut the against State’s ease him. Simmons, 512 U. S., at 175 (O’Connor, J., concurring judgment). in “[w]hen And the State seeks to show the de- fendant’s future dangerousness, ... the fact he that will never be released prison from will only way often the that a violent criminal can successfully rebut the State’s ease.” Id., at 177 (O’Connor, J., concurring judgment). in Accord- ingly, “despite general our deference to state decisions re- garding what jury the should be told about sentencing,... process due requires that the defendant [to be allowed bring parole ineligibility to jury’s the attention] in cases in which only available alternative sentence to death is life imprisonment possibility without parole prosecu- argues tion pose the-defendant will a threat to society in the future.” Ibid.

The rationale for the exception general to the rule quite Ramos is apparent. In Ramos, the defendant claimed that if the State permitted were argue to that the Governor could commute a sentence of life parole, without process then due entitled him to jury tell the that the Gover- nor could commute a death sentence as rejected well. We argument, holding however, that the information de- sought fendant to introduce “would impact” ‘balance’the telling jury that the Governor could commute a sen- tence of life parole. without 463 U. S., at 1011. Nor would it make jury “any less to inclined vote for the pen- death alty upon learning” that information. Ibid. finally, Nor, persuaded were we that it would “impermissibly impe[l] the jury voting jury toward for the death sentence” if the were told that a sentence could be commuted, life without penalty told that a death could be commuted but were not Id., as well. at 1012. points precisely however,

Each of factors, these opposite it direction when comes to information about de- argues ineligibility. If fendant’s that the State danger society, quite plainly will be a future defendant to it argument point rebuts that out that the defendant —be- parole ineligibility part cause of his never be a —-will again. society Simmons, S., 512 U. 177 (O’Connor, J., (“[TJhe concurring judgment) fact that he never be will case”). prison from released will often ... rebut State’s And unlike if Ramos, is informed of a defendant’s parole ineligibility, it is for the death “less inclined vote penalty upon learning” Conversely, permitting that fact. argue dangerousness, the State to the defendant’s future simultaneously precluding arguing while the defendant from parole ineligibility, “impe[l] does tend toward voting Despite plurality’s for the death sentence.” un- “[ejvidence supported potential parole remark that in- eligibility materiality,” is of all ante, 170, uncertain contrary. available data to the demonstrate long jail How a defendant will remain in a is critical factor juries. study, example, for One for 79% indicates that Virginia years residents consider the number that a de- might actually being paroled fendant serve before to be an “‘important choosing consideration when life between im- prisonment penalty.’”18 study and the death A similar re- jurors “extremely potential veals that 76.5% of think it important”. “very important” or to know that information deciding imprisonment pen- when and the between life death 18 Note, See for Jurors and Its Meaning of “Life” Effect 1605, 1624, Reliability Capital Va. Sentencing, 75 L. Rev. and n. 102 (1989) (citing Research study by Legal Group). National alty.19 Likewise, two-thirds of the respondents in another survey stated that they would be more likely give life sentence instead of death if they knew the defendant had to serve at least 25 years in prison before being parole eligi- ble.20 General public for support the death also penalty plummets when the survey subjects are given the alterna- tive of life without parole.21 Indeed, parole in- ineligibility formation is so important that 62.3% of potential Virginia jurors would actually disregard a judge’s instructions not to consider parole eligibility when determining defendant’s sentence.22

At the same time, the recent development of parole ineligi- bility 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

19Hughes, Informing South Carolina Capital Juries About Parole, 44 S. C. L. 383,409-410 Rev. (1993) (citing 1991 study by Univ. of South Caro lina’s Institute for Public Affairs); see also Simmons, S., 512 U. at 159 (plurality opinion) (discussing this study). 20Paduano & Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Colum. Human Rights L. Rev. 211,223 (1987). 21See, e. g., Rising Doubts on Death Penalty, USA Today, 22, Dec. 1999, (nationwide p. 17A 1999 Gallup Poll finds 71% support death penalty; 56% support death penalty when life without is offered as an option); Finn, Given Choice, Va. Juries Vote Life, Post, Washington 3, Feb. 1997, Al, pp. A6 (“According to a poll conducted for the Death Penalty Center, Information which opposes capital punishment, support for the death penalty nationwide falls from 77 percent to percent if the alter native is life without parole accompanied by restitution”); Heyser, Death Penalty on the Rise in Virginia, Roanoke Times, 31, Aug. (re p. C3 porting 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 given are the alternative of life without for 25 years plus restitution); Armstrong & Mills, Death Penalty Support Erodes, Many Back Life Term as an Alternative, Chicago Tribune, Mar. 7,2000, (58%1p. of Illinois registered voters support death penalty; only 43% favor death when given option of life without parole). Note,

22See 75 Va. Rev., L. at 1624-1625, and n. 103.

198 J., at 177-178 Simmons, S., 512 U. parole.”

of (O’Connor, this out. data bear The statistical concurring judgment). in person jurors “‘If asked: study potential One murder for intentional imprisonment life to sentenced is average years many on the robbery, during how armed an actually before serve person would you think that do response frequent most parole?”’ The being released survey put the potential-juror years.23 Another 10 was eight years.24 more And just response at over average person sentenced that jurors think potential than 70% of point in at some can be released prison murder to life future.25 study surprising con one that it not data, this is Given “[Jjurors great dangerousness attach assessing cluded: sen death if a expected sentence weight to the defendant’s jurors believe who importantly, imposed. is not Most tence prison relatively time in short death to alternative who alterna believe to death. to sentence Jurors tend to life.”26 Con longer tend to sentence tive treatment commutation why every the Governor’s sequently, reason put be required to power at issue in Ramos precisely opposite conclusion when leads fore the exactly That is parole ineligibility. to the issue it comes normally operative rule exception why is an in Ramos.27 deference established many exclusively on one plurality focusing — 172-178) (ante, length these at at sources cited—criticizes merely what confirm scientific conclusions” “so-called 23 id., 1624, 101. at and n. See 24 Rev., 223, n. 34. at Smith, L. Rights 18 Human Paduano & Colum. See 25 Post, Finn, Rev., 408; Washington also C. L. at see Hughes, 44 S. See convicted murderers believe 4 (“[O]nly percent Americans at A6 days prison”). their the rest of will spend in Capi Instructions Wells, Deadly Confusion: Juror Eisenberg & See (1993). Cases, L. Rev. 79 Cornell tal (discussing Simmons, 159, 170, opinion) S., (plurality n. 9 U. See data). above every sentencing judge surely knows —that how soon the de- fendant may actually released from is prison rele- highly vant to the sentencing decision. The plurality’s criticism yet again underscores the formalistic character of its analysis the life-or-death issue presented this case. In exercising the judicial function, there are times when far more important than technical symmetry.28

IV The Virginia Supreme Court held that whether 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 as plurality well, at least as it originally stated the holding 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

28As 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 Simmons due process right. Surely they are. In any event, Ramdass did raise such studies at his sentencing hearing. See App. 95-96. Vir ginia had its chance to object, but opted not to do so. It is far too late in the day to complainabout it now. (Simmons,incidentally, also introduced similar evidence in his trial without objection. See S., 512 U. at 159 (plurality opinion).) Next, the plurality says that one of the I studies cited focused only on Georgia jurors, as if Georgians have some unique preference for life with- parole. out 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 many other sources cited. See (Univ. n. supra of South Carolina’sInstitute for Public Af- fairs), n. 21 (Gallup Poll and Virginia Tech’sCenter for Survey Research), n. 26 (study by Associate Professor of Statistics, Dept, of Economic and Social Statistics, Univ.). Cornell defendant it probable howof assessment an might put plurality as the ineligible parole or, bewill found — law. state under certain” “more is

it, what Supreme 'Virginia reject the to correct is plurality appli- the entirely controls law holding state that Court’s due rule announced Simmons cability of Simmons. opinion); (plurality at 156 S., law. U. not state process, is This judgment). concurring in at id., J., (O’Connor, right in Simmons process due say federal that the not the surely does; it law, for to state make not does reference be- Ramos is exception to an why very Simmons reason state under ineligibility parole consequences of the cause pre- the saying that thing as same not the that But law. its entirely controls law state operation of technical cise, applicability. case that In clear. perfectly this makes itself such exigencies future “because argued that Carolina

South escape clemency, and commutation, reform, legislative as society, [Simmons] into be [Simmons]to released might allow ineligi- parole he is inform not entitled was Indeed, opinion). (plurality 6n. 166,and S., at 512 U. ble.” technically, not, was argued that Simmons it earlier, noted as the state sentencing because the time of ineligible at See determination. its yet made not had board 186-187. supra, argument outright the rejected opinion plurality

Yet issue, developments” control future “hypothetical law, while state argument about finding Carolina’s that South had “little accurate,” “legally and “technically true,” . . . In other 6.29 n. 166, and at S., Simmons, 512 U. force.” eon- not was of Simmons process standard due words, make direct did opinion concurring O’Connor’s While Justice brief Carolina's South possibilities, hypothetical to those reference hypo those If Court. before squarely the issue opinion put plurality’s concurring case difference, the outcome amade had thetical it was. what opposite precisely been would have opinion trolled entirely by the technical minutiae of state law, even though it looked at state law for determining when right to rebut the State’s argument triggered. It makes perfect sense for Simmons’ process due right to make yet reference to, not wholly by, controlled 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 the reference —hence to state law. On the other hand, Simmons is a constitutional requirement im- posed on the States. If its applicability entirely turned a defendant’s technical status under state law at the time of sentencing, the requirement constitutional would be easily evaded the artful crafting of a state statute. For exam- ple, if Virginia can define “conviction” require to an entry of judgment, it just could as easily define “conviction” to require that all appeals final be exhausted, or that all state and federal options habeas be foreclosed. And delaying when the defendant’s convictions count as parole strikes for ineligibility purposes until point some in time well the after capital murder sentencing phase, the State could convert the requirement into opt-in an constitutional rule.30 Simmons’ applicability is therefore question a of federal law, and that case makes clear that federal standard essentially disregards future hypothetical possibilities even if they might make the defendant parole eligible at some

30This 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 sen tencing (The hearing. 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 ac cepting that premise, delaying the determination parole ineligibility sta tus until after the sentencing hearing would still mean that the defendant’s other prior convictions would not count as strikes until well after the capi tal murder sentencing phase. to then, boils down question case, in this The

point.31 entry judgment and plurality’s line between the whether applicability that is Simmons’ verdict is demarcation (2) (1) and accurate as- Simmons; a realistic consistent with (3) clear rule. workable, probabilities; and sessment plurality on each score. fails I believe the precise un- emphasize basis important It to plurality limits the certainty plurality perceives. The things of sen- uncertainty the time known relevant before day sentencing, which developing tencing. Events after parole uncertainty eventual in- might to a defendant’s lend plurality eligibility inapplicable, the do not make Simmons plurality to says. be I understand the Ante, at 176. What prior at or as known facts, concerned about is whether sentencing, any whether, after sentencing, on east doubt nothing ineligible. if parole Even the defendant will become sentencing, yet by happened has time definitive might give well rise to uncer- time facts as known at that ineligibility. tainty as to defendant’s known question, the facts as then, is what were The sentencing might cast doubt the time of Ramdass’ sentencing. ineligible found after whether he would plurality points judg- are, first, which the facts to yet second, entered on verdict, ment had not been if have been set Ramdass had that the verdict could aside claim, ante, 169, an extension The Ramdass seeks plurality’s Simmons that “[pletitioner’s is therefore unfounded. And its criticism of future require probability rule would courts to evaluate the proposed that thing. itself did same very events” ignores the fact Ante, moreover, comment, irony of that is that it criticizes at 169. The on the that such ground the rule for future requiring an assessment about the future is inherently speculative. speculation an is Yet inquiry what is asked assess defendant’s precisely required jury when the however, pre reasoned The becomes speculation, future dangerousness. permitted arbitrary only guesswork diction rather than when supra, See at 194-199. learn of the defendant’s future parole status. not the case here. Unfortunately, that was filed a motion to set aside the verdict under 3A:15(b) Rule and the trial court had found that motion meritorious. But no motion to set aside the verdict had been filed pend- or ing; no legal basis for granting such a (or has) motion had ever been identified; and there was not slightest in- dication 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 sig- nificant 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 meri- torious. The mere availability of procedure for setting aside a verdict that is necessary for the defendant’s ineligibility is enough, the plurality says, to make Simmons inapplicable.

Frankly, I do not see how Simmons can be found inappli- cable on the basis of such a “hypothetical future develop- men[t].” 512 U. S., at 166 (plurality opinion). The plurality offers no evidence whatsoever that this possibility “if—an only” wrapped in a “might have” inside aof “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 verdict any more likely than the fanciful scenarios dismissed in Simmons? Why is the certainty diminished merely because the trial judge has yet entered judgment, when that fact has no bearing on whether a 8A:15(b) Rule motion will 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. only reason it suggests why the verdict here was uncertain is rather remarkable —that Ramdass himself said so. That is, the plurality upon relies the fact that convicted murderer with minimal education and a history of drug experimentation including PCP and App. cocaine, said “I don’t know” when asked if he could ever be released than Ante, at 177. thinner is This evidence prison.

from gossamer.32 of certainties plurality’s assessment the more,

What’s the standard explained earlier, internally As inconsistent. regardless same post-trial is the setting verdict aside a for Accordingly,if the entered. judgment has been of whether ease, that was Pizza Domino’s in the uncertain was verdict the the time of At conviction. Pizza Hut true for the also case, deadline hearing capital murder in the sentencing expired for either filing the Rule had under a motion for the Pizza Hut conviction. or Pizza verdict the Domino’s (The Hut conviction filing Pizza a motion for the for time days judgment had been February after expired on days after sentenc- was 13 This verdict. entered ended.) there Because capital case ing phase in the murder have could Hut the Pizza conviction possibility that was a on the Domino’s entered was set aside before been (and technically be- Ramdass therefore before verdict Pizza just certainty was the verdict ineligible), the parole came plurality, how- The for conviction. as in doubt much yet no casts uncertain Pizza verdict ever, finds the Domino’s possibly can this Hut How conviction. on the Pizza doubt says. plurality never The be consistent? entirely If approach boundless.

Finally, plurality’s development]” issue at “hypothetical future kind it inapplicable, would make hei’e is sufficient in Sim hypothetical distinguish attempts also plurality hypo- that the former out by pointing Ramdass’ case mons from those in Ante, sentencing. 168— thetieals, if would do so they happened, after could they is not whether hypothetical point But 169. the entire defend before they but whether could occur sentencing, before occur Simmons, true In that was ineligible. ant declared technically Simply because its determination. board until the made right up undermining parole an opportunity may law create the nuances state any hypothetical less possibility not make earlier on does ineligibility is at work less; principle the same ineligibility any or undermine way. either

be sufficient if, rather than having the possibility of a recent being conviction set by post-trial aside motion, prior an old conviction could be set aside appeal on before judgment had been entered on the Domino’s Pizza verdict? Or under a postconvietion State’s procedure? habeas More point, to the if the mere availability post-trial of a 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, long so as the time had expired for either? Old convictions neces- sary for a defendant’s parole ineligibility can be set aside under procedures these as well. And procedure under each prior those convictions could potentially be set aside at the crucial moment.33 easy, It is in this ease, to be distracted the lack of an entry of judgment and the reeentness of prior Ramdass’ con-

victions. 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 prior defendant’s convictions could be set aside (or before sentencing before the third strike becomes final, or before whatever time the plurality-might think is the moment), crucial then it should not matter, under that rea- soning, whether it is set by post-trial aside motion, appeal, on or (or through federal) state postconviction relief. What’s more, the plurality’s reasoning would hold true long so as procedures these are simply available. Accordingly, it would not matter whether prior defendant’s strikes were day year old, a years old, or old. Nor would it matter that judgment had been entered prior those convictions. So long as procedures such for setting aside old convictions

33It is true that these old convictions —like the Pizza Hut conviction— have had an entry of judgment and thus would count as strikes. But under law, state a defendant must have three strikes at the same time 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. defendant’s technically prior ato available remain

exist and eventual sentencing phase, the defendant’s murder capital crucial moment. at the just ineligibility as uncertain any this, but addresses plurality, however, never possibilities. today to such holding invitation surely is an its inapplicable, possibilities make Simmons these Indeed, if very of Sim- same circumvention this not invite does entirely on state rule turned if the result that would mons (see 201), all by allowing to render a State swpra, at law holding open some simply prior uncertain convictions at all times? postconviction relief possibility for theoretical posteonviction re- forms of appeals and various that Given a “conviction” certainty or of a verdict the lief undermine 8A:15(b)— procedure Rule like every as does as much bit reasoning either plurality’s so—the probably more indeed, types procedures, arbitrary these line between an draws possibilities make Simmons accepts all of these that or it right process eviscer- due is inapplicable, case that in which proclaimed abundantly that the entirely.34 clear is It ated following is an plurality claims to rule the “workable” Ante, at 166. illusion. necessary line-drawing to decide arbitrary is at all such

No that Vir- entirely simply to hold sufficient this It is case. doubting judgment that for not one ginia reason has offered robbery or Pizza verdict on the Domino’s entered would be ineligibility. Cer- doubting eventual for .Ramdass’ thinking possibil- that the tainly no reason it has offered deference, is some Commonwealth entitled says plurality “[t]he reference laws, in the best determining of its own in the context Ante, 170; see also at making ineligibility the determination.” point for (“States no support and we see ante, approaches take different may for pur final to declare conviction a State require for a that would rule rendered”). But verdict has been once a statute of a three-strikes poses must process due standard the whether here are questions the federal entry-of- distinction, not, abiding by the and if state-law by every abide has distinction of the fact arbitrary, light distinction set will be aside? verdict on whether the absolutely no bearing ity setting aside the Domino’s Pizza robbery verdict is at all likely more than hypothetical developments future rejected in Simmons. This ease thus falls squarely within Simmons. Though it is unnecessary to decide it guilty here, a verdict proper line. A guilty against verdict the defendant is a natural breaking point in the uncertainties inherent in the process.

trial Before that time, the burden is on the State prove guilt accused’s beyond a reasonable doubt. A guilty verdict, however, means that pre- defendant’s sumption of innocence—with all of its attendant trial safe- guards been overcome. The —has verdict resolves the cen- question tral general guilt. issue of It marks the most significant point of the adversary proceeding, and reflects a fundamental shift in probabilities regarding the defend- ant’s fate. For that reason, it is proper point at which a line separating hypothetical from probable should be drawn. Moreover, because the State itself can use the de- prior fendant’s to argue crimes future dangerousness after a jury has rendered a verdict —as did here, supra, see at 182-183, and n. 2—that is also point the at which the de- fendant’s right Simmons should attach.

V In Williams v. Taylor, 529 (2000) U. S. 362, 405 (opinion of O’Connor, J.), we stated the standard for granting habeas relief under § 28 2254(d)(1): U. S. C. “A state-eourt decision will certainly be contrary to our clearly prece- established dent if the state court applies a rule that contradicts gov- the erning law set forth in our eases.” As I have explained, the Virginia Supreme Court applied (a) Simmons as if applica- its bility was controlled entirely by (b) state law defend- ant’s ineligibility is determined at the exact moment when the sentencing phase occurs. supra, See at 184- 185. But state law does not control Simmons’ applicability, nor does the process due right turn on whether the defend-

208 mo- exact Ineligible the already found been has

ant entirely this makes itself sentencing. Simmons ment hold- Supreme Court’s Virginia aspects Both clear. law governing the contradicts “rule that applied ing, then, in” Simmons. forth set will decision “[a]state-court in Williams that held

alsoWe precedent clearly established contrary this Court’s to also materially are that of facts a set court confronts state if the and never- of this Court a decision from indistinguishable precedent.” our from different result at a theless arrives decision Supreme Court’s Virginia The at 406. S.,U. 529 respect. Because Simmons this contrary also Simmons rejected in developments” future “hypothetical possibility the future from indistinguishable materially are contrary to Simmons. decision Virginia court’s here, applied, been had rule assuming correct Even “unreason an would be decision Supreme Court’s that court held application” of Simmons. That able but not strike, aas count would conviction Hut Pizza only distinction robbery verdict. Pizza Domino’s mat only that reason judgment, and entry of anof lack by post-trial may aside be set the verdict because ters is both identical remains possibility But motion. possibilities hypothetical of those disregard one To crimes. has distinction a state-law based other not the but verdict that the probability absolutely no relevance of Simmons.35 application unreasonable is an aside be set will Lane, First, Teague be addressed. should points remaining Three doc antiretroactivity Teague’s relief. (1989), bar does U. S. 288 convic Ramdass' before was decided here, as is irrelevant trine below). (case 1999) (CA4 404, n. F. 3d See final. became tion any review federal habeas “new rules” of applying bar Teagues Nor is Simmons, case within squarely ease falls barrier; Ramdass’ because necessary. rule is no new and entirely, controls Ramdass suggestion plurality’s concerns point second It is 162-163,177. ante, at See claim. his Simmons have waived might this note that to It suffices length. the issue to discuss neeessary WH < Nothing the above arguments should distract us from the fact that this is a simple case. The question turns on whether hypothetical possibility that the trial judge might fail to sign piece of paper entering judgment on a guilty verdict should mean that the defendant is precluded from arguing ineligibility We jury. should also not be distracted plurality’s red herring pos- —the sibility aside setting the verdict aby post-trial motion. Not only that possibility indistinguishable from the non- exhaustive list of hypothetical future possibilities we dis- missed in Simmons, but it also fails to distinguish this case from the other many possibilities that are part state criminal justice system, and fails to distinguish Ramdass’ convictions from each other.

The plurality’s convoluted understanding of Simmons its diverse implications necessitate a fair amount of dis- entangling its argument. But, once again, this should not divert us from the plain reality this ease. 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, g., e. App. 219, 225-226,281-284 (Magistrate’s Report) (discussing its own

and other courts’ rejection of waiver argument); 187 F. 3d, (case at 402 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, 61, U. S. (1996). n. 13 Finally, that Ramdass’ counsel argued that he would go jail “for the

rest of Ms life” does not at all satisfy Simmons’ requirement. Ante, at 161. The entire point of Simmons is that the jury will often misunder- stand what it means to sentence defendant to “life.” Consequently, that Ramdass was able to tell 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 counsel made this argument after demonstrates that the jury was uncer- tain about what that statement meant.

210 how decisionmaking. knowWe life-and-death their

it is to give them not do likely to be if we they are misinformed and we worked,36 has knowWe this information. wholeheartedly it.37 embraced have the States know was thought the information jury this Moreover, we know sen- a “life” what jury misunderstood we this critical; know recommended have jury would this we know meant; tence that Ramdass had if it known of death life instead answer get clear did not we know this ineligible; and Virginia entrusts also know that question. We to its recommending life or death duty of jury the solemn the Constitution insist that Why Court does defendant. eyes? their pulled over to be permits the wool respectfully I dissent. 36 how, Virginia after Post, g., (recounting e. A1 Finn, at See, Washington Simmons, “[t]he 1995, and in after alternative life without

adopted plummeted,” has in sentence death people given number as as well and Indiana” “[sjimilar Georgia ... declines describing Maryland). (1999) Commonwealth, S. E. 2d Va. Yarbrough See dan argue future does State (extending Simmons when even apply ante, 178. gerousness);

Case Details

Case Name: Ramdass v. Angelone

Court Name: Supreme Court of the United States

Date Published: Jun 12, 2000

Citation: 530 U.S. 156

Docket Number: 99-7000

Court Abbreviation: SCOTUS