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Bobby Lee RAMDASS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robberies
Number of victims: 2
Date of murders: July 15 / September 2, 1992
Date of arrest: September 11, 1992
Date of birth: 1963
Victims profile: Darrell Ferguson, 19 (drug dealer) / Mohammad Z. Kayani (convenience store clerk)
Method of murder: Shooting (.38-caliber snub-nose pistol)
Location: Alexandria/Fairfax County, Virginia, USA
Status: Executed by lethal injection in Virginia on December 6, 2000
 
 
 
 
 
 

clemency petition

 
 
 
 
 
 

Summary:

Robert Ramdass was given a death sentence in 1993 for the robbery / murder of a convenience store clerk, Mohammad Kayani on September 2, 1992.

Ramdass said he jumped the counter and pointed a .38-caliber snub-nose pistol at Kayani's head." Ramdass recalled. "He didn't say nothing. He was just pushing buttons and looking at me. ... I told him to stop looking at me. He was scared. I felt he was scared by the way he was looking at me."

A witness testified at his trial that Ramdass looked at Kayani lying on the floor after he had been shot and remarked: "That's for taking too long."

Three days before that killing, Ramdass shot an Arlington cab driver in the back of the head and left him for dead after robbing him. In addition, he gunned down 19-year-old Darrell Ferguson in an alley on July 15, 1992.

 
 

Va. Man Executed in '92 Slaying

By Brooke A. Masters - The Washington Post

Wednesday, October 11, 2000

Bobby Lee Ramdass was executed by injection last night for the 1992 slaying of a Fairfax County 7-Eleven clerk after Virginia Gov. James S. Gilmore III declined to intervene.

Four jurors had asked Gilmore (R) to spare Ramdass's life, saying they would not have sentenced him to death for shooting Mohammed Z. Kayani had they known Ramdass would never get out of prison.

But Gilmore, in a statement last night denying clemency, cited evidence that Ramdass, after shooting Kayani, tried to shoot customers in the store who were lying on the floor during the robbery, but his gun wouldn't fire.

Ramdass, 28, who was pronounced dead at 9:06 p.m., was convicted in three separate trials of two unrelated robberies and killing Kayani. Under a three-strikes law then in effect, he would have been required to serve life in prison. But the state Supreme Court ruled that Ramdass was eligible for parole when his jury considered the death penalty because a judge had not formally entered one of the robbery convictions into the record.

The U.S. Supreme Court stopped Ramdass's execution last year to consider the issue, but ruled against the inmate 5 to 4 in June. The high court also rejected a request for a rehearing.

Ramdass's lead attorney, F. Nash Bilisoly, who sat with his client in the hours before the execution, said: "We are naturally disappointed in the governor's decision. . . . We do believe, however, that the governor gave the issue his full consideration."

Ramdass spent yesterday at Greensville Correctional Center in Jarrat, visiting with his mother and sister-in-law and talking on the phone with his younger brother, Mark, who is in federal prison.

Last night's execution coincided with an annual protest by Virginians for Alternatives to the Death Penalty, which urged opponents of capital punishment to attend a vigil nearby.

Ramdass was the seventh man executed in Virginia this year. Last year's total of 14 made Virginia second only to Texas in executions.

Abused by his mother's boyfriend as a child, Ramdass grew up in the Alexandria section of Fairfax and, by his own account, spent most of his adult life in prison or selling drugs. In addition to the robbery spree that put him on death row, Ramdass also robbed and killed a drug dealer and seriously wounded a cabdriver during yet another robbery.

Kayani, 34, was a recent immigrant from Pakistan who lived in Springfield and was working two jobs to save the money to bring his wife and two children to this country. Ramdass killed Kayani because the clerk was unable to open the timed safe at a Springfield convenience store.

Ramdass "was an outrageous man who committed an outrageous crime," Fairfax Commonwealth's Attorney Robert F. Horan Jr. said. "Kayani was such a decent man, scrambling to make a living. He couldn't do what Ramdass ordered him to do. That's why he died."

While on death row, Ramdass built a close relationship with Bilisoly, his court-appointed appeals attorney.

The inmate listed Bilisoly as his next of kin, asking prison officials to release his body to his attorney.

In a recent interview, Ramdass said he did not fault the jurors who voted to put him to death. "The jury was [thinking], 'Damn, we don't want him to get out again.' They were scared and they thought they had no choice," he said.

 
 

ProDeathPenalty.com

Robert Ramdass was given a death sentence in 1993 for the robbery / murder of a convenience store clerk, Mohammad Kayani on September 2, 1992.

Ramdass said he jumped the counter and pointed a .38-caliber snub-nose pistol at Kayani's head. "I told the dude to open the safe," Ramdass recalled. "He didn't say nothing. He was just pushing buttons and looking at me. ... I told him to stop looking at me. He was scared. I felt he was scared by the way he was looking at me."

A witness testified at his trial that Ramdass looked at Kayani lying on the floor after he had been shot and remarked: "That's for taking too long."

Three days before that killing, Ramdass shot an Arlington cab driver in the back of the head and left him for dead after robbing him.

In addition, he gunned down 19-year-old Darrell Ferguson in an alley on July 15, 1992. Ferguson was dealing drugs, Ramdass said. Drug dealers carry a lot of cash. Ramdass wanted it. But Ferguson had the audacity to try to run, Ramdass said during a prison interview, so he pumped 2 bullets into the man.

In an 8-day crime spree that year, Ramdass was linked to 6 armed robberies, including an incident in which he pistol-whipped a clerk at Bragg Towers.

 
 

Virginians for Alternatives to the Death Penalty

Bobby Lee Ramdass was sentenced to death in June 1990 for the robbery and murder of 7-Eleven store clerk Kayani. Ramdass planned to rob the store in conjunction with four other people. All five people participated in the robbery.

He was 19 at the time of the crime. Ramdass was poor and could not afford to hire his own investigators. However, the trial court denied an ex parte hearing for his motion to hire a medical doctor and investigator, resulting in his inability to retain them for his defense.

Ramdass was not allowed to see the results of the polygraph tests of the other participants in the robbery. He appealed on the basis that he should have been allowed to review them in an attempt to find some "exculpatory evidence."

He also believes that the results of the polygraph test could have helped his attorney better cross-examine two of the Commonwealth's witnesses.

However, both the trial court and the Appellate court found that these reasons were not sufficient enough to allow Ramdass to see the results of the polygraph tests.

They felt that the Commonwealth had sufficiently accommodated Ramdass with any evidence which might have helped to prove him innocent including the fact that prior to trial the answers of O'Connor, one of his accomplices, were deceptive in that he attempted to minimize his role in the 7-Eleven incident.

The Commonwealth's Attorney also informed Ramdass' attorney of three persons who allegedly would provide an alibi defense, but he also advised that they had made inconsistent statements. As a result of these inconsistent statements, Ramdass' attorney did not utilize them as witnesses.

 
 

Virginia Governor Gilmore Press Releases

Statement by Governor Jim Gilmore Regarding the Execution of Bobby Lee Ramdass

RICHMOND - Governor Jim Gilmore today issued the following statement on the execution of Bobby Lee Ramdass:

"Within three months of his release on parole, Bobby Lee Ramdass committed six armed robberies, one attempted murder, and two murders. Ramdass committed the murder for which he ultimately received the death penalty during the course of a robbery on September 2, 1992.

On the night of the murder, Ramdass entered a convenience store and ordered the clerk, Mohammad Z. Kayani, to open the store safe. Ramdass then shot Mr. Kayani in the head at point blank range because, in his words, '[Kayani] took too long.'

Before he fled the convenience store, Ramdass attempted to shoot the customers who were lying on the floor, but his gun would not fire. "As a result of crimes committed during this robbery, Ramdass was convicted of capital murder, robbery, and illegal use of a firearm in the commission of the murder, and was sentenced to death.

The convictions and death sentence were upheld on multiple appeals including Ramdass' most recent habeas corpus petition concerning his right to a jury instruction on parole ineligibility, which the United States Supreme Court thoroughly considered and denied on June 12, 2000.

"Upon a thorough review of the Petition for Clemency, the numerous court decisions regarding this case, and the circumstances of this matter, I decline to intervene."

 
 

From the Blotter - Virginia Poised to Set Record for Executions

Lineofduty.com

(Norfolk, Virginia) - Nineteen days and a legal technicality may have meant the difference between life and death for Bobby Lee Ramdass. Ramdass is scheduled to die by lethal injection Tuesday, becoming the 14th person executed in Virginia this year, a record since the state resumed executions in 1982.

Virginia is second only to Texas in the number of executions this year.

Ramdass' last-minute appeal, now before the U.S. Supreme Court, hinges on whether the judge who heard the case should have informed the jury that Ramdass never would have been eligible for parole if the panel had sentenced him to life in prison.

A Norfolk attorney who is seeking to stop the execution said the jury that convicted Ramdass was led to believe that he may have been eligible for parole if he got a life sentence, and felt bound to sentence him to death.

The jury even asked the judge if Ramdass would ever be eligible for parole, but the judge would not answer the question directly. "Any jurors who are considering death need to know if life in prison means no eligibility for parole, especially if the jury asks,'' said attorney F. Nash Bilisoly, a maritime lawyer handling his first death-penalty case.

The Virginia attorney general's office disagrees and is fighting to make sure that Ramdass is put to death Tuesday.

No one disputes that Ramdass is a heartless two-time killer.

Ramdass, 27, began his life of crime when he was 13. In his teens, he piled on convictions for theft, burglary, robbery, gun possession and escape, according to court documents.

The Fairfax County man went on a robbery and killing spree during summer 1992, when he was 20. He shot 7-Eleven clerk Mohammad Z. Kayani in the head during a robbery, held up two fast-food restaurants and killed a drug dealer, all within the span of six weeks. Kayani also was killed.

Court-appointed psychiatrists and social workers blamed Ramdass' actions on a bleak and abusive upbringing by a neglectful mother who was a topless dancer and a father who beat him as a boy because he did not believe Ramdass was his son.

But no one, not even Ramdass' lawyers, are using that to excuse his behavior. All his lawyers are asking the U.S. Supreme Court for is another chance with a jury. "If that jury then comes back with a sentence of death, then I don't think Bobby Ramdass has anything to complain about,'' Bilisoly said.

The technicality in the case revolves around the 19 days between Ramdass' murder conviction on Jan. 30, 1993, and the day a judge signed a sentencing order in a prior robbery. If the judge had counted that robbery conviction -- which another jury had handed down 23 days earlier -- as Ramdass' second strike, the judge would have been bound by Virginia law to inform the jury in the capital-murder case that Ramdass would not be eligible for parole under the old three-strikes rule.

That law mandated life without parole for anyone convicted of three violent felonies. The jury even asked the judge: "If the defendant is given life, is there a possibility of parole at some time before his natural life?'' The answer should have been no, Bilisoly said.

Ramdass already had been sentenced to 76 years for the first robbery and was scheduled to receive 18 years for the second robbery. But the judge counted only one strike. He told the jury: "You should impose such punishment as you feel is just under the evidence and within the instructions of the court. You are not to concern yourselves with what may happen afterwards.'' Bilisoly said he is not suggesting that the judge or prosecutors did anything illegal or unethical.

"But there can be no doubt that it resulted in an uninformed jury that felt it had no choice but to impose the death sentence,'' Bilisoly wrote in his clemency petition to Gov. Jim Gilmore.

Three jurors in the capital-murder case later told defense attorneys that they would have voted against a death sentence had they known that Ramdass never would have been eligible for parole, Bilisoly said.

In a further twist, 18 months after Ramdass was sentenced to death, the U.S. Supreme Court ruled in a South Carolina case that nearly mirrors Ramdass' case that jurors must be informed if a defendant will not be eligible for parole if sentenced to life. Ramdass' attorneys have asked the U.S. Supreme Court to apply that South Carolina case to Ramdass.

"We are not asking for the court to order that he be given life without parole. We're asking that it go back to the jury and let them decide,'' Bilisoly said.

Appeals court judges have been divided on the issue as well. U.S. District Court Judge Raymond A. Jackson in Norfolk sent Ramdass'case back for resentencing, but that decision was overturned by the 4th U.S. Circuit Court of Appeals, one of the most conservative courts in the country. Fourth Circuit Judge Francis D. Murnaghan Jr. of Baltimore, who disagreed with the majority's decision, wrote of the technicality: "Splitting hairs when a man's life is at stake is not becoming to a judiciary or a legal system.''

The state attorney general's office on Thursday said this legal argument has been tried in the past and has failed. "The claim that Ramdass' attorney is making is one that is frequently made in capital cases, and it's not one that we feel has merit,'' said David Botkins, a spokesman for Attorney General Mark Earley. "The bottom line is that he was found guilty in a Circuit Court in Fairfax County,'' Botkins said.

If the U.S. Supreme Court rejects Bilisoly's argument, Ramdass' only chance will be clemency from the governor. Gilmore has granted clemency in only one other death-penalty case. If Ramdass' case is sent back for resentencing, a new jury will be given two options, life or the death penalty. But this time, jurors would be informed that Ramdass has no chance for parole. In addition to the 94 years he's serving for the two robberies,

Ramdass is also serving another life term for a separate murder conviction he received subsequent to the capital-murder conviction.

 
 

Fight the Death Penalty USA

A man convicted of killing a convenience store clerk during a 1992 robbery was executed Tuesday night, nearly a year after the Supreme Court halted his scheduled execution so it could hear his appeal.

Bobby Lee Ramdass, 29, was condemned for the killing of Mohammad Kayani during a robbery of the store in Fairfax County. Ramdass was executed by injection.

According to testimony at his trial, Ramdass screamed at Kayani to open the store' s safe " or I'll blow your ... head off." He then shot Kayani and laughed as he stood over the body. Gov. Jim Gilmore, in a statement denying clemency, noted that after Ramdass shot Kayani he tried to shoot customers in the store who were lying on the floor during the robbery but his gun wouldn't fire.

Ramdass was 3 hours from execution on Nov. 23, 1999, when the Supreme Court issued a stay to hear his appeal. The appeal contended the trial judge should have informed the jury that Ramdass would never be eligible for parole if sentenced to life in prison, and the court later rejected it. 4 of the jurors who recommended the death penalty said they would have called for life in prison had they known Ramdass could not be paroled.

Tuesday, when asked for a final statement before his execution, Ramdass said: "Redskins are going to the Super Bowl," and then laughed. His wife, who he married a week ago, visited him before the execution.

Ramdass becomes the 7th condemned inmate to be executed this year in Virginia and the 80th condemned inmate overall since the state resumed capital punishment in 1982. (sources: Associated Press & Rick Halperin)

 
 

Jury misperceptions and the death penalty

By Stephen Garvey - FindLaw Contributor

Special to CNN Interactive

Before the end of this year's term, the U.S. Supreme Court will decide the fate of Bobby Lee Ramdass, who in all likelihood sits on death row because the jury that condemned him never received a straight answer to a simple question.

Ramdass' case might seem one of a kind. In fact, it represents one example of how a jury's misconceptions about parole eligibility often lead to a sentence of death.

The Ramdass case

Ramdass was sentenced to death after he was convicted of murdering a store clerk during the robbery of a Virginia 7-11. At the end of the murder trial, the jury -- after agreeing that Ramdass was guilty of murder -- had to choose between a sentence of life imprisonment and a sentence of death by lethal injection.

Worried that a sentence of "life imprisonment" might actually mean that Ramdass would someday be paroled, the jury asked the judge, "[I]f the defendant is given life, is there a possibility of parole at some time before his natural death?" The judge should have told them "no."

At the time of Ramdass' sentencing hearing, he had two convictions: one for the murder of the store clerk and one for a prior armed robbery. Under Virginia's "three strikes" law, these two "strikes" meant that one more and Ramdass would spend the rest of his life in prison without possibility of parole. And Ramdass did have another strike: he had already been found guilty of a second armed robbery that preceded the murder.

A "no" answer would have quieted the jury's fear that Ramdass, a three-time criminal, would someday be back on the streets. However, instead of explaining that Ramdass would never be released from prison if sentenced to life, the judge told the jury, "[You] are not to concern yourselves with what may happen [after you impose the sentence you think is just]."

Answer based on a technicality

That wasn't much of an answer. For one thing, it didn't address the jury's obvious concern. For another, it was based on a technicality. At the time the jury was deliberating on the sentence he should receive for the murder, Ramdass' third strike for the second armed robbery had not yet been formally entered. Thus, Ramdass technically had only two "strikes" against him, not three. Officially, therefore, Virginia's "three strikes" law did not yet apply.

Nevertheless, in reality, there was no question that the third and final conviction would be entered in a few weeks (in a ministerial, rubber-stamp procedure), which would trigger the "three strikes" law and make Ramdass ineligible for parole for life.

On appeal to the Fourth Circuit, Ramdass argued that the trial judge's actions violated his right to due process. In Simmons v. South Carolina, decided in 1994, a plurality of the Supreme Court held "that where [a] defendant's future dangerousness is at issue, and state law prohibits [his] release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible."

Fourth Circuit ruling

According to Ramdass, the trial judge's reply to the jury's inquiry violated his rights under Simmons. The Fourth Circuit disagreed. Reading Simmons narrowly, the panel emphasized that at the time Ramdass was sentenced to death, Virginia law did not -- strictly speaking -- "prohibit [his] release on parole."

The case is now pending in the Supreme Court, which could follow the Fourth Circuit and affirm Ramdass' death sentence. It could read Simmons narrowly, such that a jury will be told the facts about a capital defendant's parole eligibility only under limited circumstances.

For example, the court might say due process requires an instruction to the jury about a defendant's parole ineligibility only if, as in Ramdass' case, a prior conviction has been formalized; or only if the period of ineligibility is life (and nothing less); or only if the state makes the defendant's future dangerousness an issue at trial. Any of these limitations is possible.

But the court should impose none of these limitations. A capital defendant should have an unfettered right to inform the jury about his ineligibility for parole. The court must recognize that Ramdass' case is but one manifestation of a larger, more widespread, and worrisome problem.

Because of the Capital Jury Project, a nationwide research effort to examine the decision making process of capital jurors, we now know that the decision between life and death often turns on what jurors think about a defendant's eligibility for parole. The Capital Jury Project's research, incorporating sophisticated statistical models, has shown that fear of future dangerousness dominates juror deliberations in capital cases -- and weighs heavily in favor of death.

Misplaced worries

Accordingly, capital jurors naturally worry that if they don't impose a death sentence, the defendant will be released on parole, only to repeat his crime. But these worries are often misplaced and even more often exaggerated.

Most jurors believe that life imprisonment really means eventual parole. Yet when three strikes or similar laws are on the books, as is the case in Ramdass, that perception is wrong. Life imprisonment means death in prison. Moreover, even when parole is possible, jurors dramatically underestimate the amount of time the defendant will serve before he becomes eligible for parole. The less time a juror thinks the defendant will spend in prison before he might be released, the more likely the juror is to vote for death.

So what should the court do in Ramdass? It should give capital defendants the right---with no limitations---to tell the jury how long they will spend in prison if not sentenced to death. Otherwise, a jury's decision to sentence a defendant to death will not represent a judgment that death is the punishment he truly deserves. It will instead represent the jury's often-erroneous belief that death was the only way to keep the defendant from doing future harm.

Bobby Lee Ramdass may very well deserve the death penalty for his crimes. Yet the jury that condemned him never made that decision. It decided merely that, so far as its members knew, death was the only way to guarantee he would never be released from prison. But in reality death was not the only way. The court should remand the case so that a new jury---with the knowledge that Ramdass will never be paroled---can decide his fate fully informed of all the facts.

 
 

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 98-30 / No. 98-32

BOBBY LEE RAMDASS, Petitioner-Appellee,
v. 
RONALD J. ANGELONE, Director, Virginia Department of Corrections, Respondent-Appellant.

BOBBY LEE RAMDASS, Petitioner-Appellant,
v. 
RONALD J. ANGELONE, Director, Virginia Department of Corrections, Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (CA-96-831-2)

Argued: May 4, 1999
Decided: August 3, 1999

Before WIDENER, MURNAGHAN, and NIEMEYER, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Judge Niemeyer wrote the opinion, in which Judge Widener joined. Judge Murnaghan wrote an opinion concurring in part and dissenting in part.

OPINION

NIEMEYER, Circuit Judge:

A Fairfax County, Virginia court convicted Bobby Lee Ramdass of capital murder and sentenced him to death for the murder of Moham- med Kayani during the robbery of the convenience store where Kay- ani was a clerk. On Ramdass' petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254, the district court granted the writ and ordered the state court to resentence Ramdass, concluding that the state court had denied Ramdass due process by denying him the opportunity established by Simmons v. South Carolina , 512 U.S. 154 (1994), to tell the jury during sentencing that he was ineligible for parole. The district court rejected the other grounds advanced by Ramdass in his petition.

Accepting the Virginia Supreme Court's state law determination that Ramdass was not, at the time of his sentencing proceedings, legally ineligible for parole, we conclude that Simmons was not appli- cable. Accordingly, we reverse the district court's order insofar as it concluded that Simmons required the writ to issue. Finding no error in the district court's disposition of the other issues, we affirm the remaining portion of the district court's order.

I

The facts of Kayani's murder are related by the Virginia Supreme Court as follows:

During the night of September 1 and early morning of September 2, 1992, Ramdass and Darrell Wilson, both armed with pistols, were returning home in a car with three other men, Shane Singh, Edward O'Connor, and Candelerio Ramirez, after abandoning a plan to rob persons at a Roy Rogers restaurant in Fairfax County. On the way, Ramdass suggested that they rob persons at a 7-Eleven store on Buelah Street in Fairfax County.

Accordingly, near one o'clock on the morning of September 2, the five men entered the 7-Eleven store. Ramdass entered first and "drew" his pistol on Kayani, a 7-Eleven clerk who was behind the cash register. Wilson, who also displayed his pistol, ordered all the customers to lie on the floor and not look at him. The other three men, who were unarmed, took the customers' wallets, money from the cash register, and cigarettes and lottery tickets from the store's stock.

After Ramdass ordered Kayani to open the safe, Kayani knelt down next to the safe and unsuccessfully tried to open it. Ramdass squatted next to Kayani and yelled at him to open the safe "or I'll blow your f------ head off." Wilson fired his pistol at one of the customers on the floor. Immedi- ately thereafter, Singh, standing behind Ramdass, saw Ramdass shoot Kayani in the head on his second attempt to get the weapon to fire.

Just after Ramdass shot Kayani, Ramirez returned from a back room in the store. Ramirez saw Ramdass laughing as he stood over Kayani's body. Later, Ramirez heard Ramdass say that he shot Kayani because he "took too long." Shortly thereafter, Ramirez opened the front door, and Wilson, Singh, and O'Connor ran out. As Ramirez held the door open, he urged Ramdass to "[c]ome on." However, Ramdass was "clicking the gun at the people on the floor" and told Ramirez to "[s]hut up or I'll put one in you." One of the cus- tomers also heard the clicking of the gun as Ramdass left.

When they got in the car, Ramirez heard Ramdass ask Wilson, "Why didn't you get rid of the people on the floor?" After the men divided the robbery proceeds at Singh's home, Ramdass told Ramirez, "Don't tell anybody about this [or] I'll kill you and I'll kill your whole family."

Singh, a co-owner of the gun with Ramdass, testified that the gun would not fire unless held at a certain angle because the "bullets" in the chamber were not the right size for the gun. Julian Jay Mason, Jr., a forensic scientist specializing in firearms identification, later examined and test fired the gun. Mason testified that the 9 millimeter cartridges Ramdass used in the gun were smaller than the 38 caliber car- tridges specified for the gun.

Therefore, when the gun's muzzle was pointed down, the 9 millimeter cartridges slid too far forward to be struck by the firing pin. Mason further testified that when the muzzle was pointed up, the cartridge slid back closer to the firing pin, and the gun could be fired.

Ramdass v. Commonwealth (" Ramdass I "), 437 S.E.2d 566, 568-69 (Va. 1993) (footnote omitted). Following indictment and a trial, a Fairfax County jury found Ramdass guilty of capital murder in the commission of armed robbery as well as illegal use of a firearm. Ramdass had earlier pled guilty to one count of robbery.

At the sentencing phase of trial, the Commonwealth of Virginia sought the death penalty, arguing that Ramdass presented "a continu- ing serious threat to society" -- the "future dangerousness" predicate for imposition of the death penalty. See Va. Code Ann. § 19.2-264.2.

In support of this argument, the Commonwealth presented evidence of Ramdass' history of theft-related crimes beginning at age 14 and his pattern of recidivism during periods of escape or probation. More specifically, the prosecution detailed how, within three months of his release on mandatory parole after serving four years of a seven-year sentence for robbery, Ramdass committed a series of at least six armed robberies.

The first two robberies occurred on August 25, 1992, when Ramdass robbed a Pizza Hut in Fairfax County, abducting a woman and hitting a man. Four days later, he robbed a clerk at an apartment-hotel in Alexandria and struck him in the head with a gun. On August 30, 1992, he shot and robbed a cab driver. Later that evening, he robbed a clerk at a Domino's Pizza in Arlington.

Finally, Ramdass killed Mohammed Kayani on September 2, 1992, during the sixth robbery in this eight day spree. See Ramdass I , 437 S.E.2d at 574. Ramdass' counsel responded to the prosecution's argument by asserting that "Ramdass will never be out of jail. Your sentence today will insure that if he lives to be a hundred and twenty two, he will spend the rest of his life in prison."

During sentencing deliberations, the jury asked:"if the Defendant is given life, is there a possibility of parole at some time before his natural death?" While recognizing that Virginia law did not permit a sentencing jury to be informed of the defendant's parole eligibility, Ramdass' counsel nevertheless maintained that "the [jurors'] question itself implies that they have a perception that if they give a life sentence that he will be out in a very short period of time" and that it was necessary to inform the jury otherwise with "some kind of language that would balance out that perception."

Over defense counsel's objection, the trial judge told the jurors that they"should impose such punishment as [they] feel is just under the evidence and within the instructions of the Court" and that they "are not to concern [them]selves with what may happen afterwards." The jury returned a verdict recommending death on the capital murder count, based upon Ramdass' "future dangerousness," and recommending four years imprisonment on the firearm count.

At the sentencing hearing in April 1993, Ramdass' counsel urged the court to impose a sentence of life in prison instead of death in light of Ramdass' ineligibility for parole under Virginia's three- strikes provision.   1   See Va. Code Ann. § 53.1-151(B1). Defense coun- sel proffered to the court that three jurors had told him that they would have imposed a life sentence rather than death if they had known that Ramdass would not be eligible for parole. Rejecting defense counsel's request, the court sentenced Ramdass to death.

On direct appeal to the Virginia Supreme Court, Ramdass argued, inter alia , that his death sentence violated the Sixth, Eighth, and Four- teenth Amendments to the United States Constitution because the trial judge prevented him from telling the jury that he was parole ineligi- ble, a potentially mitigating factor. Rejecting that argument, the Vir- ginia Supreme Court stated that Ramdass had advanced"no persuasive reason" to modify prior Virginia precedent holding that "a jury should not hear evidence of parole eligibility or ineligibility because it is not a relevant consideration in fixing the appropriate sen- tence." Ramdass I , 437 S.E.2d at 573 (citing Wright v. Commonwealth , 427 S.E.2d 379, 392 (Va. 1993)).

From that court's decision, Ramdass filed a petition for writ of cer- tiorari with the United States Supreme Court. While that petition was pending, the United States Supreme Court decided Simmons v. South Carolina , 512 U.S. 154 (1994), holding that when a prosecutor argues future dangerousness to a capital sentencing jury, a defendant who is parole ineligible has a due process right to respond to that argument by informing the jury, through argument or instruction, of his ineligi- bility for parole. After deciding Simmons , the Supreme Court granted Ramdass' petition for certiorari and remanded his case to the Virginia Supreme Court for reconsideration in light of Simmons . See Ramdass v. Virginia , 512 U.S. 1217 (1994).

On remand, Ramdass asserted that because he was ineligible for parole under Virginia's three-strikes statute, Simmons applied to his case and required that he be allowed to "meet the state's case against him" by informing the jury of his parole ineligibility. The Virginia Supreme Court, however, reaffirmed Ramdass' death sentence, con- cluding that the holding of Simmons was not implicated. Noting that Simmons applies "only if Ramdass was ineligible for parole when the jury was considering his sentence," the Virginia Supreme Court deter- mined that Ramdass was "not ineligible for parole since he had only two separate felony offenses within the meaning of[the three-strikes provision]." Ramdass v. Commonwealth (" Ramdass II "), 450 S.E.2d 360, 361 (Va. 1994) (internal quotation marks omitted).

While recognizing the Pizza Hut conviction and the Kayani murder conviction as predicate offenses under the three-strikes statute, the court rejected Ramdass' argument that the January 7, 1993 jury verdict of guilty in the Domino's Pizza robbery was also a predicate conviction because "[j]udgment had not been entered on that verdict." Id . Accordingly, the court stated, "it cannot be considered as a conviction" under the three-strikes provision. Id . (citing Smith v. Commonwealth , 113 S.E. 707, 709 (1922)).

Pursuing state post-conviction relief, Ramdass again asserted in his state habeas petition that Simmons required that the jury be accurately informed as to his parole eligibility status, although he did not specifi- cally challenge the Virginia Supreme Court's determination in Ramdass II that under Virginia law he was not ineligible for parole.

Ramdass also claimed that his trial counsel were constitutionally ineffective for, inter alia , failing to investigate and to object to the appointment of Dr. Stanton Samenow as his mental health expert because Dr. Samenow was "notoriously pro-prosecution" and refused to work with the defense. In arguing the ineffective assistance of counsel, Ramdass stated also that he was denied the reasonable assis- tance of a mental health expert at trial, in violation of both Ake v. Oklahoma , 470 U.S. 68 (1985) (holding that in limited circumstances, a criminal defendant has a Fourteenth Amendment right to access to a competent psychiatrist) and Virginia Code § 19.2-264.3:1 (entitling indigent capital defendants to the assistance of a mental health expert).

The Virginia Supreme Court dismissed the petition. It ruled that Ramdass' Simmons claim was barred from review under the rule of Hawks v. Cox , 175 S.E.2d 271 (Va. 1970) (holding that an issue previously decided against the petitioner on direct appeal may not again be considered on post-conviction review), and it summarily rejected Ramdass' ineffective assistance of counsel claim.

Seeking habeas relief in the federal courts, Ramdass filed this peti- tion in February 1997, alleging, among other things, unconstitutional error in the trial court's failure to allow the jury to consider his alleged parole ineligibility. He also claimed that trial counsel were constitutionally ineffective for failing to investigate the views and reputation of Dr. Samenow, for failing to object to his appointment, and for failing to seek alternative mental health testimony. Finally, he alleged that his Fourteenth Amendment right to the assistance of a mental health expert had been violated, either under Ake or by depri- vation of a state-created right to such assistance provided in Va. Code Ann. § 19.2-264.3:1.

The district court granted Ramdass a writ of habeas corpus based on the Simmons claim, dismissed the remaining claims, and ordered the state trial court to resentence him. See Ramdass v. Angelone , 28 F. Supp.2d 343, 356-74 (E.D. Va. 1998). From the district court's order, the Commonwealth of Virginia appealed to challenge the Simmons ruling, and Ramdass cross- appealed to preserve his claim on various other grounds rejected by the district court.

II

In its appeal, the Commonwealth of Virginia raises two issues: (1) that the Simmons claim was defaulted because it was not properly raised in state court, and (2) that Ramdass is, in any case, not entitled to relief under Simmons because, had he been sentenced to life imprisonment, he would not have been parole ineligible under Virginia law.

The Commonwealth's first point -- that Ramdass failed to pre- serve his Simmons claim by raising it in state court as required by 28 U.S.C. § 2254(b) (barring federal courts from entertaining habeas petitions from individuals who have not exhausted their state court remedies) -- does not merit an extended discussion.

Prior to filing his federal habeas petition, Ramdass raised his core Simmons claim -- that due process entitled him to inform the jury that he was ineligible for parole -- to the Virginia Supreme Court on at least three separate occasions: in his first direct appeal, in his direct appeal on remand from the United States Supreme Court, and in his state habeas peti- tion. Indeed, the most compelling evidence that Ramdass did not default his Simmons claim is the fact that the Virginia Supreme Court disposed of that claim by declaring it barred from review on state habeas by the rule of Hawks v. Cox , 175 S.E.2d 271 (Va. 1970), which proscribes the relitigation of claims that have already been adjudicated on the merits in state court on direct appeal.

While it is true, as the Commonwealth points out, that Ramdass did not specifically contest the parole eligibility determination in his state habeas petition, he did assert the broader, more basic claim, which he had made all along, that the trial court's refusal to give the jury that information on his request violated his constitutional right to due pro- cess. We believe that the Commonwealth's characterization of Ramdass' Simmons claim for this purpose is unduly narrow. Accordingly, we conclude that the district court did not err in finding that the Simmons claim was not defaulted. We now turn to the merits.   2  

A

Understanding first the precise rule in Simmons will aid our analy- sis of Ramdass' claims. In Simmons v. South Carolina , 512 U.S. 154 (1994), the prosecutor had argued to the jury during the penalty phase of trial that the death sentence was appropriate because Simmons, who had assaulted and killed several elderly women, was a future danger to society. To rebut this argument, Simmons contended that because he was only a threat to elderly women, none of whom he would ever encounter in prison, he did not pose such a danger. He proffered evidence that he was legally ineligible for parole and requested an instruction to the jury that if sentenced to life imprisonment, he would remain imprisoned "for the balance of his natural life." Id . at 160.

The trial court denied Simmons' request to inform the jury, either by argument or instruction, of his ineligibility for parole under South Carolina law. The United States Supreme Court ruled that this denied Simmons due process as guaranteed by the Fourteenth Amendment. Id . at 156, 171 (Blackmun, J., plurality opin- ion); id . at 178 (O'Connor, J., concurring). We recognize Justice O'Connor's concurrence as the controlling opinion in Simmons because it represents the narrowest grounds upon which a majority of the Court agreed. See Keel v. French , 162 F.3d 263, 270 (4th Cir. 1998), cert . denied , No. 98-9324, 1999 WL 317623 (U.S. June 14, 1999); Townes v. Murray , 68 F.3d 840, 849 (4th Cir. 1995); see also O'Dell v. Netherland , 521 U.S. 151, 158 (1997).

Writing for the plurality, Justice Blackmun held"that where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sen- tencing jury be informed that the defendant is parole ineligible." Simmons , 512 U.S. at 156 . When the jury lacks such information, the plurality noted, there is a real danger that the state will "succeed[ ] in securing a death sentence on the ground, at least in part, of . . . future dangerousness, while at the same time concealing from the sentencing jury the true meaning of its noncapital sentencing alternative, namely, that life imprisonment meant life without parole." Id . at 162.

In her concurrence, Justice O'Connor recognized that when a state prosecutor argues future dangerousness to the jury, the defendant's only opportunity to rebut that argument will often be by telling the jury that "he will never be released from prison." Id . at 177.

Justice O'Connor went on to conclude that in such a case the defendant should be allowed to bring his parole ineligibility to the jury's attention--by way of argu- ment by defense counsel or an instruction from the court-- as a means of responding to the State's showing of future dangerousness. And despite our general deference to state decisions regarding what the jury should be told about sentencing, I agree that due process requires that the defendant be allowed to do so in cases in which the only available alternative sentence to death is life imprisonment without possibility of parole and the prosecution argues that the defendant will pose a threat to society in the future. Id .

Accordingly, the grounds on which both the plurality and Justice O'Connor agree are summarized in Townes v. Murray , 68 F.3d 840, 850 (4th Cir. 1995):

Simmons does not hold, as the plurality opinion at one point put it, that "due process requires that the sentencing jury be informed that the defendant is parole ineligible," id . at [156] (plurality opinion). It only holds more narrowly that "[w]here the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due pro- cess entitles the defendant to inform the capital sentencing jury -- by either argument or instruction -- that he is parole ineligible." Id . at [177] (O'Connor, J.). . . . Put in terms familiar from philosophical and jurisprudential debates over the proper meaning of "equality" and "equal protection," the defendant's right, under Simmons , is one of opportunity, not of result.

In short, a defendant in a capital case is constitutionally entitled, under Simmons , to inform the sentencing jury of parole ineligibility by argument or, on his request, by instruction from the court when (1) the prosecution makes the "future dangerousness" argument that the defendant will pose a threat to society in the future and (2) the only available alternative sentence to death is life imprisonment without the possibility of parole.

It is undisputed in this case that Ramdass meets the first require- ment. The prosecutor at Ramdass' sentencing proceeding argued that the death penalty was necessary solely because Ramdass was a future danger to society. Whether Ramdass meets the second requirement is the principal source of dispute in the appeal before us.   3   Resolution of this issue depends on how Simmons defines parole ineligibility and whether, under the standards for making that determination, Ramdass was ineligible for parole at the time of the penalty phase of trial.

B

In Ramdass II , the Virginia Supreme Court held that Simmons did not apply to Ramdass' case because Simmons required legal ineligi- bility for parole and Ramdass was not ineligible for parole under Vir- ginia law. The Court concluded that if sentenced to life imprisonment on the Kayani murder, Ramdass would not have been"convicted of three separate felony offenses" of murder, rape, or armed robbery as required for parole ineligibility under Virginia's three-strikes statute. Va. Code Ann. § 53.1-151(B1).

According to the court, Ramdass' qualifying convictions at the time were (1) the Pizza Hut armed rob- bery conviction, upon which judgment had been entered, and (2) the Kayani murder conviction. The court acknowledged that a jury had also returned a verdict finding Ramdass guilty of armed robbery in the Domino's Pizza incident. But, relying on Smith v. Commonwealth , 113 S.E. 707 (Va. 1922), which held that conviction does not occur until judgment is entered, the court concluded that the Domino's Pizza robbery could not be counted as the third strike under the Vir- ginia statute because the court had not entered judgment on that guilty verdict at the time that the jury in this case was deliberating Ramdass' sentence. See Ramdass II , 450 S.E.2d at 361.

Ramdass contends that the Virginia Supreme Court misconstrued Simmons as requiring a state law determination of parole ineligibility rather than "the functional and common-sense[im]possibility of parole" as the trigger for the right to inform the jury of parole ineligi- bility. Moreover, even if state law governs the parole ineligibility determination for purposes of applying Simmons , Ramdass, in substance, accuses the Virginia Supreme Court of attempting to avoid the application of Simmons by adopting a novel and highly technical defi- nition of "convicted" in the three-strikes provision.

Further, Ramdass maintains that even if a conviction requires the entry of judgment, as Ramdass II held, the Domino's Pizza guilty verdict should count as a conviction because the entry of judgment was nondiscretionary, purely ministerial, and legally insignificant. In short, Ramdass argues for a pragmatic, functional, nonlegalistic concept of when a defendant is ineligible for parole.

Because Ramdass advances an erroneous interpretation of Simmons , we must begin by turning to Simmons itself. Simmons grants capital defendants a due process right in state trials to advise a jury of parole ineligibility only when the only alternative to a sen- tence of death is a sentence of life imprisonment without the possibil- ity of parole. That condition cannot be a general question of practicality determined by a federal habeas court, as Ramdass argues. Parole eligibility is a state law question. Under Simmons , only those capital defendants who are parole ineligible under state law at sentencing are constitutionally entitled to inform the jury that they will be ineligible for parole if sentenced to life imprisonment.

In other words, a trial court must determine the question of whether Simmons applies to a particular defendant based on whether state law renders that defendant ineligible for parole. See Simmons , 512 U.S. at 156 (Blackmun, J., plurality opinion) (limiting the holding to situations where "state law prohibits the defendant's release on parole"); id . at 176 (O'Connor, J., concurring) (citing South Carolina statutes to dem- onstrate that for Simmons "the only available alternative sentence to death . . . was life imprisonment without the possibility of parole").

When Ramdass argues that Simmons ' applicability is not condi- tioned on "a state's determination of `parole ineligibility' at the moment of capital sentencing" but rather on a nonlegalistic "common- sense [im]possibility of parole," he advances a new interpretation of Simmons that is simply incompatible with the logic of Simmons itself. In relying on Justice O'Connor's statement that Simmons applies in "cases in which the only available alternative sentence to death . . . is life imprisonment without possibility of parole," id . at 177, to argue that a federal, functional standard applies to parole ineligibility determinations, Ramdass ignores the Simmons plurality's repeated refer- ence to state law as the determining factor for whether or not a defendant is ineligible for parole. See , e.g. , id . at 156 ("We hold that where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligi- ble" (emphasis added)); id . at 165 (observing that the defendant's ability to use parole ineligibility to rebut a future dangerousness argu- ment depends "on the fact that he was legally ineligible for parole" (emphasis added)); id . at 165 n.5 ("The Due Process Clause will not tolerate placing a capital defendant in a straitjacket by barring him from rebutting the prosecution's arguments of future dangerousness with the fact that he is ineligible for parole under state law " (empha- sis added)).

Moreover, his reliance on Justice O'Connor's language is also misplaced. Ramdass' interpretation not only reads too much into Justice O'Connor's phraseology, but it also takes the phrase out of context. Nothing in Justice O'Connor's concurrence indicates that she disagreed with the plurality and believed that the parole eligibility determination was governed by anything other than state law.

On the contrary, she cited state law to show that Simmons himself was ineligible for parole, see id . at 176, and she concluded that Simmons was entitled to communicate his parole ineligibility to the jury because "the only alternative sentence to death under state law was life imprisonment without possibility of parole," id . at 178 (emphasis added). See also id . at 176 ("In a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact").

In addition, Ramdass' argument for equating legal parole ineligibil- ity with a common-sense impossibility of parole is at odds with case law from this circuit. Under Ramdass' theory, defendants who are, as a practical matter, unlikely to be paroled -- perhaps because a state only rarely grants parole or because the defendant would be over a hundred years old when finally legally eligible-- would be entitled to a Simmons instruction. Yet, we have consistently refused to apply Simmons to cases in which the defendants were not legally ineligible for parole at the time of sentencing. See , e.g. , Roach v. Angelone , 176 F.3d 210, 220 (4th Cir. 1999) (refusing to extend Simmons to apply to a defendant who would not become eligible for parole for twenty- five years, under state law); Keel v. French , 162 F.3d 263, 270 (4th Cir. 1998) (holding that "[s]ince Keel would have been eligible for parole had he not been sentenced to death, [citing state law], he is not entitled to any relief under our current interpretation of Simmons "), cert . denied , No. 98-9324, 1999 WL 317623 (U.S. June 14, 1999); Fitzgerald v. Greene , 150 F.3d 357, 367 (4th Cir.) (declining to apply Simmons after Virginia Supreme Court determined defendant was not ineligible for parole under the three strikes statute because his convic- tions arose out of the same transaction), cert . denied , 119 S. Ct. 389 (1998).

Finally, as a matter of simple logic, the fact that a defendant will have no possibility of parole if given a life sentence can only stem from the legal conclusion that state law bars eligibility for parole. Because parole eligibility is entirely a creature of state law, Ramdass' conception of practical or functional parole eligibility must inevitably collapse into a determination of state law.

Even were we persuaded by Ramdass' theory that practical rather than legal parole ineligibility suffices to trigger Simmons , we would conclude that it was not "clearly established" as required by 28 U.S.C. § 2254(d)(1). Cf . Keel , 162 F.3d at 269. This statutory provision, which requires that the state court decision at issue be inconsistent with "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), "imports an antiretroactivity principle into federal habeas law." Green v. French , 143 F.3d 865, 873 (4th Cir. 1998). It resembles, but does not simply cod- ify, the anti-retroactivity doctrine of Teague v. Lane , 489 U.S. 288 (1989). In fact, we have observed that the standard of § 2254(d)(1) is "even more stringent" than Teague . Weeks v. Angelone , 176 F.3d 249, 266 n.9 (4th Cir. 1999); see also Gosier v. Welborn , 175 F.3d 504, 510 (7th Cir. 1999) (noting that § 2254(d)(1)"closes the escape hatches in Teague ").   4   Thus, either under Teague or under § 2254(d)(1), Ramdass' argument for an extension of Simmons would fail.

C

Having determined that Simmons applies only to a capital defen- dant who, under state law, is legally ineligible for parole at the time of sentencing, we turn to the question of whether Ramdass meets this threshold requirement. The Virginia Supreme Court held that, under the three-strikes statute, he did not. See Ramdass II , 450 S.E.2d at 361. The district court held that the state court's conclusion was an unreasonable determination of fact. See Ramdass v. Angelone , 28 F. Supp.2d at 365.

As an initial matter, we clarify that the parole eligibility determination is a question of law, not fact, as the Virginia Supreme Court has recognized. See Fitzgerald , 150 F.3d at 367 (citing Fitzgerald v. Commonwealth , 455 S.E.2d 506, 510 (Va. 1995)). Accordingly, to the extent that the district court's decision to grant the writ rested on the unreasonable-determination-of-fact rationale, it cannot stand.

More significantly, parole eligibility is a question of state law and therefore is not cognizable on federal habeas review. The AEDPA provides explicitly that a federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in cus- tody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). Because the definition of what constitutes a conviction in Virginia's three-strikes statute and the application of that state law definition to the facts of Ramdass' case are purely questions of state law, we have no power to revisit these questions on federal habeas review.

Even if we were not so constrained, however, we would be unper- suaded by Ramdass' argument that the Virginia Supreme Court adopted an artful, form-over-substance interpretation of the three- strikes statute to thwart his Simmons claim. At most, Ramdass can complain about the effect of the random timing of his trials. If judg- ment had been entered on the Domino's Pizza robbery verdict 19 days earlier, then Ramdass would have been ineligible for parole under the three-strikes statute and accordingly entitled to inform the jury of that fact.

However, given that Ramdass committed the Pizza Hut robbery, the Domino's Pizza robbery, the Kayani murder and robbery, and sev- eral other potentially qualifying offenses within several days of each other, the random order in which he was tried for these various offenses was entirely foreseeable, dictated only by the docket of the relevant county court. In fact, it is equally possible that Ramdass could have been tried on the most serious charge-- the Kayani mur- der -- first, in which case he would have had only one qualifying conviction at the time of sentencing and, thus, would be an additional conviction short of making a valid Simmons claim.

Second, Ramdass characterizes the Virginia Supreme Court's reli- ance on Smith v. Commonwealth , 113 S.E. 707 (1922) (discussing the meaning of the term "conviction" in the context of a statute removing public officials from office upon conviction of crimes of moral turpi- tude), as a judicial version of grasping at straws. Yet, sound reasoning supports Smith 's holding that conviction requires an entry of judg- ment, rather than simply a jury verdict. Cf . Fed. R. Crim. P. 32(d)(1) (requiring an entry of judgment signed by the judge).

Even though Smith 's factual predicate is wholly unrelated to parole eligibility, the age-old rationale underlying its definition of conviction is designed to protect defendants. Requiring the entry of judgment-- even if it appears to be only a formal step of the process-- in contexts in which additional negative consequences are to be imposed based on the conviction, provides an additional layer of procedural protection against unfairness or corruption.

Third, Ramdass attempts to portray the Smith decision as an irrele- vant relic. While the Virginia Supreme Court had not cited this case in a published opinion since the 1920s, the intermediate appellate court has observed that "Virginia courts have defined the word `con- victed' in accordance with Smith , but only in the context of a defen- dant who has been confronted with some type of forfeiture." Fields v. Commonwealth , 361 S.E.2d 359, 362 (Va. Ct. App. 1987) (purporting to limit Smith to its facts). As a type of forfeiture, parole ineligi- bility fits neatly within the narrow circumstances in which the Smith definition of conviction is appropriate, or even necessary.

Upon amassing a given number of convictions for certain crimes, a defendant forfeits his right to be considered for parole under the standard operation of the parole system. This is precisely the kind of serious deprivation that should not occur without the solemn imprimatur of the court's entry of judgment on the decision of the jury. Finally, the fact that the Virginia Supreme Court has remanded for re-sentencing upon finding a Simmons violation in another case defeats the implica- tion that the Virginia Supreme Court is somehow hostile to enforcing the Simmons right. See Mickens v. Commonwealth , 457 S.E.2d 9 (Va. 1995).

We have included this discussion only in an effort to dispel Ram- dass' insinuation that the Virginia Supreme Court acted craftily in denying his Simmons claim. In the end, however, we reiterate that this dispute about the meaning of the Virginia three-strikes statute is wholly a question of state law that cannot provide the basis for a fed- eral court to grant the writ of habeas corpus. See 28 U.S.C. § 2254(a).

III

On his cross-appeal, Ramdass contends that the district court erred in dismissing, either as defaulted or meritless, the following four other claims in support of his habeas petition: (1) the Virginia Supreme Court's determination that he was eligible for parole as of the time of sentencing under Virginia law was so arbitrary as to violate due pro- cess; (2) the denial of access to assistance from a mental health expert violated his right to due process; (3) the ineffective assistance of counsel denied him the constitutional right to counsel; and (4) the denial of funds for expert assistance and an evidentiary hearing violated his right to due process. We address these claims in order.

A

First, Ramdass claims that the Virginia Supreme Court's interpretation of the three-strikes provision was so inconsistent with Virginia precedent and so arbitrary that it violated due process. In response to the Commonwealth's contention that this claim was defaulted by fail- ure to raise it in state court, he argues that it could not have been defaulted because the Virginia Supreme Court in fact addressed it simply by concluding that he was parole eligible under Virginia law.

This argument, however, proves too much. Carried to its logical conclusion, Ramdass' argument would mean that every judicial ruling carries with it an implicit, due process rubber-stamp. There is no evi- dence that the Virginia Supreme Court's parole eligibility determination silently encompassed an additional conclusion that the parole eligibility finding itself comported with due process. Because, as Ramdass concedes, ineffective assistance of state habeas counsel will not show cause for his default, see Mackall v. Angelone , 131 F.3d 442, 446-49 (4th Cir. 1997), we have no power to reach the merits of this independent due process claim on federal habeas. See 28 U.S.C. § 2254(b)(1)(A). In any event, we would reject the claim on the merits for the reasons given in our discussion in Part II(C), above.

B

Ramdass next challenges the district court's rejection of his claims that he was illegally denied the assistance of a mental health expert based on two, separate theories: (1) the due process right to access to a mental health expert under Ake v. Oklahoma , 470 U.S. 68 (1985), and (2) the due process right to non-arbitrary enforcement of Virginia Code § 19.2-264.3:1, which grants capital defendants the assistance of a mental health expert. Although the district court did not distinguish between these two arguments, holding that they were defaulted, we conclude (1) that the Ake claim was preserved but that the Virginia Supreme Court did not unreasonably apply clearly established federal law in dismissing it, and (2) that the claim based on the arbitrary enforcement of state law was defaulted.

The standard for state court exhaustion prior to filing a federal habeas petition is not, as the Commonwealth suggests, whether a peti- tioner presented the "identical" claim in state court but rather whether he "fairly presented" his federal claim to the state court. "A claim is fairly presented when the petitioner presented to the state courts the substance of his federal habeas corpus claim. The ground relied upon must be presented face-up and squarely; the federal question must be plainly defined." Matthews v. Evatt , 105 F.3d 907, 911 (4th Cir. 1997) (emphasis added and internal quotation marks and citations omitted).

Under this standard, Ramdass did include in his state habeas peti- tion at least the "substance" of his federal claim that he was denied a mental health expert in violation of due process under Ake . Even though the claim appeared under the heading of ineffective assistance of counsel and the sub-heading of failure to secure a mental health expert, Ramdass nonetheless grounded his claim on the seminal Supreme Court case, Ake . He summarized the holding of Ake and alleged facts in support of his claim that Dr. Samenow was pro- prosecution and refused to assist the defense by identifying any miti- gating factors for the sentencing phase. Even so, the Virginia Supreme Court dismissed this claim, finding that it had no merit. In doing so, the Virginia Supreme Court did not unreasonably apply clearly established federal law. See 28 U.S.C. § 2254(d).

Ake provides a right to assistance of a mental health expert only if a defendant made a showing to the trial court that his mental state was at issue in his defense of the charges or if, in arguing future danger- ousness in the sentencing phase, the prosecution used expert psychiat- ric testimony. See Ake , 470 U.S. at 82 -83 (noting that the need for the assistance of a psychiatrist is "readily apparent" either when "the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense" or "when the State presents psychiatric evidence of the [capital] defendant's future dangerousness" during the penalty phase (emphasis added)). Neither condition was met here.

The due process claim for the arbitrary enforcement of a state stat- ute was defaulted because, in his state habeas petition, Ramdass stated only that his rights under the state statute had been denied. This is no more than a state law question. Ramdass did not make the further argument, necessary to make the claim cognizable on federal habeas review, that this denial constituted a violation of his right to due pro- cess under the Fourteenth Amendment. See 28 U.S.C. § 2254(a).

C

In support of his ineffective assistance of counsel claim, Ramdass argues that his trial counsel were deficient in failing to object to Dr. Samenow's appointment and in failing to seek assistance from an alternative mental health expert once they realized that Dr. Samenow would not be helpful. We conclude that the Virginia Supreme Court did not unreasonably apply clearly established federal law in dismiss- ing this claim for lack of merit. See 28 U.S.C. § 2254(d).

To prevail on his ineffective assistance of counsel claim, Ramdass must meet two well-established requirements. First, he "must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington , 466 U.S. 668, 688 (1984). This is a difficult showing to make because in assessing the reason- ableness of counsel's course of action, "[o]ur review . . . is highly def- erential" to counsel. Wilson v. Greene , 155 F.3d 396, 403 (4th Cir. 1998) (citing Strickland , 466 U.S. at 689 ). Second, he must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694 . The district court, assuming arguendo that Ramdass could satisfy the deficiency prong of Strickland , ruled that Ramdass's ineffective assistance claim failed because he could show no prejudice. See Ramdass , 28 F. Supp.2d at 370. We agree.

Instead of presenting testimony from Dr. Samenow, who had failed to identify any mitigating factors in his report on Ramdass, Ramdass' trial counsel presented testimony from Ramdass, his brother, his mother, and a probation officer during the penalty phase in an attempt to establish mitigating factors.

Because the jury was aware of the dysfunctional circumstances of Ramdass' childhood, Ramdass cannot now show a reasonable probability that psychiatric testimony as to the same circumstances would produce a different result. Moreover, nei- ther Ake , 470 U.S. at 83 , nor Virginia Code§ 19.2-264.3:1(A) creates a right to a particular expert. Accordingly, Ramdass cannot show a reasonable probability, as required by Strickland , that the Virginia Supreme Court would have either removed Dr. Samenow upon objec- tion or appointed an additional expert upon request.

D

On Ramdass' final point, we conclude that, because Ramdass failed to make out a prima facie case as to his mental health expert and ineffective assistance claims, the district court did not err in deny- ing Ramdass funds for expert assistance or an evidentiary hearing.

IV

In sum, we reverse the district court's decision to grant Bobby Lee Ramdass' petition for a writ of habeas corpus based upon a Simmons violation. Because Simmons is limited to situations where state law renders the defendant legally, not merely practically, ineligible for parole, we conclude that the Virginia Supreme Court did not unreasonably apply clearly established federal law when it ruled that Simmons did not apply to Ramdass' case because Ramdass was not ineligible for parole under Virginia law. In addition, we affirm the district court's opinion as to the remaining issues raised by Ramdass on cross-appeal. The judgment of the district court is

AFFIRMED IN PART AND REVERSED IN PART .

*****

MURNAGHAN, Circuit Judge, concurring in part and dissenting in part:

I concur in the majority's handling of most of the issues raised by Ramdass.   1   I respectfully dissent, however, from the majority's treat- (Text continued on page 24) complete, deficient and inadequate according to conventional psycholog- ical standards." ( Id. ) Dr. Koller's preliminary evaluation of the records available to Dr. Samenow indicated seven specific factors ignored by Dr. Samenow which could be considered significant factors in mitigation. It is also worth noting that Dr. Samenow has been at the center of at least two other constitutional challenges. See Swann v. Taylor , 173 F.3d 425, 1999 WL 92435, at *6-*9 (4th Cir. Feb. 18, 1999) (unpublished table disposition) (claiming Ake violation); Wright v. Angelone , 151 F.3d 151, 161 (4th Cir. 1998) (claiming ineffective assistance of counsel for using Dr. Samenow).

We have suggested that Ake requires only an expert and an examina- tion, see Wilson v. Greene , 155 F.3d 396, 401 (4th Cir. 1998), not a com- petent expert and an appropriate examination, but see id. at 409 (Michael, J., concurring) (noting that the Wilson majority did not squarely reject the right to an appropriate examination). I agree that Ake does not require "effective assistance of a psychiatric expert." See , e.g. , Pruett v. Thompson , 996 F.2d 1560, 1573 n. 12 (4th Cir.1993). In my view, though, the Supreme Court requires more than just a warm body with a prefix attached to his name; Ake provides a right to a "competent expert" and an "appropriate examination." Ake , 470 U.S. at 83 . (I note that competence and appropriateness, based on objective professional criteria, are entirely different than effectiveness).

Ultimately, however, Ramdass' Ake claim must fail. On direct appeal I would follow the Tenth Circuit and hold that Ake applies when the state presents any evidence on future dangerousness and the indigent defen- dant establishes the likelihood his mental condition is a significant miti- gating factor. See Castro v. Oklahoma , 71 F.3d 1502, 1513 (10th Cir. 1995); Liles v. Saffle , 945 F.2d 333, 240-41 (10th Cir. 1991). Compare Tuggle v. Netherland , 79 F.3d 1386, 1387-88 (4th Cir. 1996) (describing the Ake right as arising when the prosecution first presents psychiatric testimony), with Swann , 173 F.3d 425, 1999 WL 92435, at *2 (stating Ake applies "when a capital defendant's future dangerousness is to be a significant factor at the penalty phase of the trial"). Constrained by the Anti-Terrorism and Effective Death Penalty Act of 1996 amendments to 28 U.S.C.A. § 2254(d)(1) (West Supp. 1999), however, I believe that Ake 's application when the prosecution has not presented its own psychi- atric evidence on future dangerousness is not clearly established by the Supreme Court. Cf. Rogers v. Gibson , 173 F.3d 1278, 1285 n.5 (10th Cir. 1999) (stating that it is doubtful that applying Ake when state has not ment of Ramdass' Simmons claim. Because it seems evident that Ramdass should be able to inform the jury, by argument or court instruction, of his non-eligibility for parole if sentenced for life imprisonment, I would affirm the district court on the Simmons claim so that the sentencing jury could be accurately informed that Ramdass would be parole ineligible.

I.

A clear statement of the factual context of this case is useful to gain an understanding of the arbitrariness of the result reached by the majority.

The jury found Ramdass guilty of the Kayani murder on January 28, 1993. His sentencing hearing began the next day. At that hearing, the prosecution presented as evidence of Ramdass' future dangerous- ness the fact that he had been found guilty of the Pizza Hut robbery, see infra , and the Domino's Pizza robbery, see infra . The Common- wealth also emphasized that previously Ramdass had committed crimes while released on "mandatory" parole.

While deliberating Ramdass' sentence, the jury asked the judge, "if the Defendant is given life is there a possibility of parole at some point before his natu- ral death?" (emphasis added). Rather than answering that question, the judge told the jury that they were "not to concern [themselves] with what may happen" after they impose his sentence. On January 30, 1993, the jury imposed a sentence of death.

On appeal, the Supreme Court ordered the Virginia Supreme Court to reconsider Ramdass' case in light of Simmons v. South Carolina , 512 U.S. 154 (1994). Simmons involved facts almost identical to those at bar. In Simmons , a defendant was made parole ineligible by a conviction for capital murder.

At the sentencing phase for that crime, the defendant requested that the jury be instructed that a life sentence would not carry with it the possibility of parole. To bolster his position, the defendant cited, inter alia , a study indicating that more than 75 percent of those surveyed in South Carolina considered the amount of time a defendant would actually have to spend in prison to be an "extremely important" or "very important" factor in choosing between life and death. Simmons , 512 U.S. at 159 . As in the case at bar, during deliberations, the jury asked the judge a single question: "Does the imposition of a life sentence carry with it the possibility of parole?" Id. at 160. The trial judge gave a vague answer and instructed the jury not to consider parole in reaching its verdict. Id. Within minutes, the jury returned a sentence of death.

On remand in the case at bar, the Virginia Supreme Court held that Simmons was inapplicable because under Virginia law, Ramdass was not technically parole ineligible at the time the jury was deliberating his capital sentence. Under Virginia law, a felon is parole ineligible if he has been "convicted" of three offenses of murder, rape, or rob- bery with a deadly weapon (a "predicate conviction"); when multiple predicate convictions are part of a common act, transaction, or scheme, they are counted as only one predicate conviction. See Va. Code Ann. § 53.1-151(B1) (Michie 1998) (the"three strikes law").

At the time the capital jury was considering his sentence, Ramdass had been found guilty of five robberies and one murder.   2   One of the robberies involved no deadly weapon and therefore was not a predi- cate conviction. Two of the other robberies were part of the same transaction. On December 15, 1992, a jury had found Ramdass guilty of two counts of robbery and one count of using a firearm in the com- mission of a robbery (the "Pizza Hut robbery"). Judgment and sentence for this crime was officially imposed on January 22, 1993.

At the time that Ramdass was sentenced on the Kayani murder, this con- viction was still subject to a motion to set aside the verdict for trial error or insufficiency of the evidence. See Va. Sup. Ct. R. 3A:15(b) (Michie 1998). It was also subject to an appeal. See Va. Code Ann. § 17-116.05:3 (Michie 1996). The Virginia Supreme Court counted the Pizza Hut robbery as only one predicate conviction.

The final two armed robberies were also part of one transaction. On January 7, 1993, in a separate proceeding, a jury found Ramdass guilty of two counts of robbery and one count of using a firearm in the commission of a robbery (the "Domino's Pizza robbery"). Judg- ment and sentence on this crime was not officially imposed until Feb- ruary 18, 1993.

The Virginia Supreme Court reasoned that the Domino's Pizza robbery did not count as a predicate conviction because at the time of the Kayani sentencing, Ramdass had not yet been "convicted" of that offense under the meaning of that term in the three strikes law -- although he had been found guilty, judgment had not yet been officially entered. With only one predicate conviction besides the Kayani murder, the Virginia Supreme Court held that Simmons was inapplicable because on January 30, 1993 Ramdass was technically eligible for parole.

While this result is sound under the legal technicalities of Virginia law, in practical reality it was a certainty that Ramdass would be parole ineligible upon entry of the Kayani conviction. Indeed, at the Kayani sentencing, there was no practical difference between the Domino's Pizza robbery guilty verdict and the Pizza Hut robbery guilty verdict. From January 30, 1993 until February 18, 1993, no motions were outstanding which could have affected the Domino's Pizza conviction. Ramdass claims that as of January 30, 1993, his motion to strike the evidence as insufficient as a matter of law in the Domino's Pizza robbery case, see Va. Sup. Ct. R. 3A:15(a), had already been denied. So, except for the ministerial act of formally entering judgment, on January 30, 1993, Ramdass was in exactly the same position vis-a-vis the Domino's Pizza robbery as he was vis-a- vis the Pizza Hut robbery: the finding of guilt was subject only to a Rule 3A:15(b) motion to set aside the verdict and an appeal under Virginia Code § 17-116.05:3.   3  

Thus, although it was a virtual cer- tainty at his capital sentencing that Ramdass would be ineligible for parole, the Virginia Supreme Court found that Simmons was not applicable because Ramdass was still in some technical legal sense eligible for parole. Nineteen days after the jury delivered Ramdass' sentence for the Kayani murder, the ministerial act of entering judgment on the Domino's Pizza robbery was completed, giving Ramdass his second predi- cate conviction.

The Kayani sentence and judgment was officially imposed on April 6, 1993 -- more than one month after formal entry of judgments on the Pizza Hut robbery and the Domino's Pizza rob- bery. When judgment for the Kayani murder was entered, that judg- ment, combined with the Pizza Hut conviction and the Domino's Pizza conviction gave Ramdass his third strike, making him ineligible for parole. This was exactly the occurrence of which Ramdass had requested the jury be informed.

II.

The majority takes the view that the Virginia Supreme Court's interpretation of Virginia law settles the case. I disagree. There is no doubt that the Virginia Supreme Court was entitled to interpret the word "convicted" in Virginia Code § 53.1-151(A) in the way it did. Further, we are bound by this interpretation of state law by the highest state court. This case does not hinge on the word"convicted" in Virginia law, however.

The case hinges upon the requirements of the Due Process clause of the Fourteenth Amendment. In Simmons , the Supreme Court defined one aspect of this Due Process clause. Admittedly, the right recognized in Simmons is dependent to some extent upon state law: The right depends upon state parole law; the right only applies to those for whom state law has eliminated the possibility of parole. But, the right is a federal right, nonetheless, and the scope and parameter of the Simmons right is a matter of federal constitu- tional law.

The majority rejects a "pragmatic, functional, nonlegalistic con- cept" of the Simmons right. I think the majority has overlooked the genesis of Simmons . Simmons was merely an extension of the rule in Gardner v. Florida , 430 U.S. 349 (1977), and Skipper v. South Carolina , 476 U.S. 1 (1986), that "elemental due process require[s] that a defendant not be sentenced to death `on the basis of information which he had no opportunity to deny or explain.'" Skipper , 476 U.S. at 5 n.1 (plurality opinion) (quoting Gardner , 430 U.S. at 362 ), quoted in part in Simmons , 512 U.S. at 164 (plurality opinion), and quoted in id . at 175 (O'Connor, J., concurring in the judgment). As both the plurality opinion and the O'Connor concurrence   4   recognized, the fact that the defendant will never be released from prison "will often be the only way that a violent criminal can successfully rebut the State's case [of future dangerousness]." Simmons , 512 U.S. at 177 (O'Connor, J., concurring in the judgment); id . at 163-64 (plurality opinion) ("In assessing future dangerousness, the actual duration of the defendant's prison sentence is indisputably relevant. . . . Indeed, there may be no greater assurance of a defendant's future nondanger- ousness to the public than the fact that he never will be released on parole.").

This principle has full force in the case at bar. At capital sentencing, the prosecution presented evidence of Ramdass' future danger- ousness. Some of this evidence included the fact that Ramdass had committed the Pizza Hut robbery and the Domino's Pizza robbery. More importantly, the Commonwealth repeatedly referred to the fact that Ramdass had committed many of his crimes while on parole. The Commonwealth mentioned the phrase "mandatory parole" several times, suggesting to the jury that the Commonwealth would have no choice but to parole Ramdass at some future date.

In the face of this evidence of future dangerousness, Ramdass was rendered powerless to explain to the jury that, but for what was at that point a meaning- less ministerial act, he was ineligible for parole under state law.   5   Thus, under Gardner , Skipper , and Simmons , Ramdass was denied his "elemental due process" right to deny or explain the Commonwealth's evidence of future dangerousness. See Simmons , 514 U.S. at 175 (O'Connor, J., concurring).

It is also important to remember the audience of the Simmons right. Simmons is concerned about the defendant's ability to present rebuttal evidence to a jury. Thus, Simmons is grounded in the right to present information which might affect a jury's decision making. Juries are not concerned about legal technicalities or remote and theoretical pos- sibilities. They are concerned about practical realities.

The Supreme Court recognized this point in Simmons . In Simmons , South Carolina argued that informing the jury that the defendant would be parole ineligible was inherently misleading because future contingencies such as legislative reform, commutation, and clemency might allow the release of the prisoner. The plurality rejected this argument, holding that the defendant could not be denied the right to rebut prosecu- tion evidence of future dangerousness merely because of "hypothetical future developments." Simmons , 512 U.S. at 166.

The court reasoned that a parole ineligibility instruction was more accu- rate than no instruction at all, which would inevitably leave the jury to assume that the defendant would eventually be released. Id. Noth- ing in Justice O'Connor's concurrence indicates that she disagreed with the plurality that remote contingencies were irrelevant to the due process analysis.

In the case at bar, the majority hides its reliance on hypothetical future developments behind a state law shield. Because Ramdass did not become technically "parole ineligible" under Virginia law until judgment was formally entered on the Domino's Pizza robbery, the majority holds that Simmons is inapplicable. But at the time of the Kayani sentencing, only some hypothetical future development as remote as legislative reform, commutation, or clemency, could have affected entry of the Domino's Pizza robbery conviction and therefore prevented Ramdass from being parole ineligible.

The reason the Supreme Court rejected reliance on such future hypothetical develop- ments is evident in the arbitrary result of the case at bar. At the time of the Kayani sentencing, the court had already rejected Ramdass' motions in the Domino's Pizza robbery case to set aside the jury's verdict before entry of judgment. See Virginia Sup. Ct. R. 3A:15(a). Formal entry of the conviction at that point was merely a ministerial act. Thus, for all realistic intents and purposes, it was a guarantee that Ramdass would be parole ineligible when the Kayani conviction was formally entered.

Further, there was at the time of the Kayani sentencing no practical basis for distinguishing between the Pizza Hut robbery guilty verdict and the Domino's Pizza robbery guilty verdict. Because the Rule 3A:15(a) motions had been denied for the Domino's Pizza robbery verdict, both verdicts were subject to an identical degree of uncer- tainty -- either could be set aside only under a Rule 3A:15(b) motion or on appeal. Yet the majority asserts that the constitution requires us to treat the one as a certainty and the other as if it did not exist.

Splitting hairs when a man's life is at stake is not becoming to a judiciary or a legal system. I do not believe that due process requires or allows such arbitrary results. I would hold that, regardless of the technical, legalistic definition of "conviction" used by the Virginia Supreme Court, Ramdass had a constitutional due process right to inform the jury of the wholly accurate information that by the time the sentence they were deliberating was officially entered by the judge, he would be ineligible under state law for parole. I respectfully dissent.

*****

FOOTNOTES

  1.   Ramdass' parole eligibility at the time of the sentencing hearing was governed by Virginia's three-strikes statute, which provides that an indi- vidual is ineligible for parole if he has been "convicted of three separate felony offenses" of murder, rape, or armed robbery, which "were not part of a common act, transaction or scheme." Va. Code Ann. § 53.1- 151(B1). At the time the jury was deliberating his sentence in this case, Ramdass had already been sentenced (the week before) to 76 years imprisonment in connection with the Pizza Hut armed robbery. In addi- tion, about three weeks earlier, on January 7, 1993, a jury had returned a verdict finding Ramdass guilty in the Domino's Pizza armed robbery, for which it recommended an 18-year sentence. The court, however, had not yet entered judgment in that case. It did so nearly three weeks after the jury in this case concluded its sentencing deliberations.

  2.   The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), establishing the applicable standard of review, provides in relevant part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreason- able determination of the facts in light of the evidence pre- sented in the State court proceeding.

28 U.S.C. § 2254(d).

  3.   It is undisputed that the Supreme Court decided Simmons before Ramdass' direct appeal was final. See Ramdass v. Virginia , 512 U.S. 1217 (1994) (granting Ramdass' petition for certiorari on direct appeal and remanding to the Virginia Supreme Court for reconsideration in light of Simmons ); cf. O'Dell v. Netherland , 521 U.S. 151 (1997) (declaring

that Simmons announced a "new rule" under Teague for all already final convictions). Accordingly, the anti-retroactivity component of § 2254(d) would not bar application of Simmons to Ramdass' habeas petition on retroactivity grounds if Simmons is otherwise applicable as a matter of substantive law.

  4.   In fact, § 2254(d)(1) can be seen as stricter in that it does not recog- nize Teague 's two traditional exceptions which permit retroactive appli- cation of new rules which either "place[ ] certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe" or are "watershed rules of criminal procedure." See Green , 143 F.3d at 873 (quoting Teague , 489 U.S. at 311 -12).

  1.   I note that I concur only in the judgment on the Ake claim. Ake pro- vides that under certain circumstances "the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and pre- sentation of the defense." Ake v. Oklahoma , 470 U.S. 68, 83 (1985). Ramdass presented ample evidence to show that Dr. Stanton Samenow's professed and public views make him incompetent to aid a defendant in finding and presenting mitigating factors at a defendant's sentencing phase, and that Dr. Samenow did not conduct an appropriate examination. Dr. Samenow has publicly stated that criminals are a "different breed of person," (J.A. at 347), who seek to manipulate the system for their own ends. He has abandoned sociologic, psychologic, and mental illness explanations for criminal behavior and holds the view that "[m]ost diagnoses of mental illness [in criminals] resulted from the criminal's fabrications." (J.A. at 348.) Dr. Samenow's published works state that circumstances have nothing to do with criminal violations and that "pro- viding the criminal with an opportunity to present excuses deferred him and us further and further from change." (J.A. at 348.) According to a report submitted to the district court by Dr. Reuben Koller, Dr. Same- now's views obviate his ability to evaluate mitigating factors relating to the history or character of a criminal defendant"because he is of the opinion that no mitigating factors can exist." (J.A. at 474.) Even if Dr. Samenow were to abandon his public beliefs and identify mitigating fac- tors, his testimony would be subject to damaging impeachment on cross- examination from his own publicly expressed views. In fact, the record shows that just that happened at another capital sentencing trial. Further, Dr. Koller opined that Dr. Samenow's examination of Ramdass was "in- presented psychiatric evidence of future dangerousness is clearly established by the Supreme Court).

  2.   He was also awaiting trial on two other armed robberies, both involv- ing assault with a deadly weapon.

  3.   The Commonwealth also points out that under Va. Code Ann. §§ 19.2-298 and -303 (Michie 1995), the court could suspend the imposi- tion of the sentence or suspend the sentence in whole or in part. This is irrelevant, however, for two reasons. First, the Pizza Hut robbery was also subject to a § 19.2-303 suspension of the sentence. Second, regard- less of whether a sentence has been suspended, nothing in §§ 19.2-298 or 19.2-303 erases the conviction for purposes of parole ineligibility under Virginia's three strikes statute.

  4.   We have recognized Justice O'Connor's concurrence as the control- ling opinion in Simmons . See Keel v. French , 162 F.3d 263, 270 (4th Cir. 1998), cert . denied , No. 98-9324, 1999 WL 317623 (U.S. June 14, 1999); Townes v. Murray , 68 F.3d 840, 849 (4th Cir. 1995).

  5.   The majority sets up a straw man by asserting that Ramdass has asked us to extend Simmons to situations in which a defendant is not ineligible for parole under state law. The majority relies in part on Roach v. Angelone , 176 F.3d 210, 220 (4th Cir. 1999), Keel v. French , 162 F.3d 263, 270 (4th Cir. 1998), and Fitzgerald v. Greene , 150 F.3d 357, 367 (4th Cir. 1998), to defeat this straw man. In each of those cases, however, the defendant remained eligible for parole under state law even when all ministerial acts were completed. Of course Simmons did not apply to each of those defendants. Those cases are wholly inapposite here, where Ramdass' whole argument is based on his parole ineligibility under state law.

 
 

SUPREME COURT OF THE UNITED STATES

No. 99—7000

BOBBY LEE RAMDASS, PETITIONER

v.

RONALD J. ANGELONE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT

[June 12, 2000]

    Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Scalia, and Justice Thomas join.

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

I

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

    The murder of Kayani was no isolated incident. Just four months earlier, after serving time for a 1988 robbery conviction, petitioner had been released on parole and almost at once engaged in a series of violent crimes.

    In July, petitioner committed a murder in Alexandria, Virginia. On August 25, petitioner and three accomplices committed an armed robbery of a Pizza Hut restaurant, abducting one of the victims. Four days later, petitioner and an accomplice pistol-whipped and robbed a hotel clerk.

    On the afternoon of August 30, petitioner and two accomplices robbed a taxicab driver, Emanuel Selassie, shot him in the head, and left him for dead. Through major surgery and after weeks of unconsciousness, Selassie survived. The same day as the Selassie shooting, petitioner committed an armed robbery of a Domino’s Pizza restaurant.

    The crime spree ended with petitioner’s arrest on September 11, 1992, nine days after the Kayani shooting. Petitioner faced a series of criminal prosecutions. For reasons we discuss later, the sequence of events in the criminal proceedings is important to the claim petitioner makes in this Court. Under Virginia law, a conviction does not become final in the trial court until two steps have occurred. First, the jury must return a guilty verdict; and, second, some time thereafter, the judge must enter a final judgment of conviction and pronounce sentence, unless he or she determines to set the verdict aside.

   On December 15, 1992, a jury returned a guilty verdict based on the Pizza Hut robbery. On January 7, 1993, a jury rendered a guilty verdict for the Domino’s robbery; on January 22, the trial court entered a judgment of conviction on the Pizza Hut verdict; on January 30, the sentencing phase of the Kayani murder trial was completed, with the jury recommending that petitioner be sentenced to death for that crime; and on February 18, the trial court entered judgment on the Domino’s verdict.

    After his capital trial for the Kayani killing, petitioner pleaded guilty to the July murder in Alexandria and to the shooting of Selassie. Thus, at the time of the capital sentencing trial, a final judgment of conviction had been entered for the Pizza Hut crime; a jury had found petitioner guilty of the Domino’s crime, but the trial court had not entered a final judgment of conviction; and charges in the Alexandria murder had not yet been filed, and indeed petitioner had denied any role in the crime until sometime after the sentencing phase in the instant case.

    At the sentencing phase of the capital murder trial for Kayani’s murder, the Commonwealth submitted the case to the jury using the future dangerousness aggravating circumstance, arguing that the death penalty should be imposed because Ramdass “would commit criminal acts of violence that would constitute a continuing serious threat to society.” Va. Code Ann. §19.2—264.4(C) (1993).

    Petitioner countered by arguing that he would never be released from jail, even if the jury refused to sentence him to death. For this proposition, Ramdass relied on the sentences he would receive for the crimes detailed above, including those which had yet to go to trial and those (such as the Domino’s crime) for which no judgment had been entered and no sentence had been pronounced. Counsel argued petitioner “is going to jail for the rest of his life… . I ask you to give him life. Life, he will never see the light of day … .” App. 85. At another point, counsel argued: “ ‘Ramdass will never be out of jail. Your sentence today will insure that if he lives to be a hundred and twenty two, he will spend the rest of his life in prison.’ ” 187 F.3d 396, 400 (CA4 1999). These arguments drew no objection from the Commonwealth.

    The prosecution’s case at sentencing consisted of an account of some of Ramdass’ prior crimes, including crimes for which Ramdass had not yet been charged or tried, such as the shooting of Selassie and the assault of the hotel clerk. Investigators of Ramdass’ crimes, an accomplice, and two victims provided narrative descriptions of the crime spree preceding the murder, and their evidence of those crimes was the basis for the prosecution’s case in the sentencing hearing. Evidence of the crime spree did not depend on formal convictions for its admission. 

   The prosecutor, moreover, did not mention the Domino’s crime in his opening statement and did not introduce evidence of the crime during the Commonwealth’s case in chief. App. 8-47. Ramdass himself first injected the Domino’s crime into the sentencing proceeding, testifying in response to his own lawyer’s questions about his involvement in the crime. In closing, the prosecutor argued that Ramdass could not live by the rules of society “either here or in prison.” Id., at 86.

    During the juror deliberations, the jury sent a note to the judge asking: “[I]f the Defendant is given life, is there a possibility of parole at some time before his natural death?” Id., at 88. Petitioner’s counsel suggested the following response: “  “You must not concern yourself with matters that will occur after you impose your sentence, but you may impose [sic] that your sentence will be the legal sentence imposed in the case.”  Id., at 89.

    The trial judge refused the instruction, relying on the then-settled Virginia law that parole is not an appropriate factor for the jury to consider, and informed the jury that they “ ‘are not to concern [them]selves with what may happen afterwards.’ Id., at 91. The next day the jury returned its verdict recommending the death sentence.

    Virginia law permitted the judge to give a life sentence despite the jury’s recommendation; and two months later the trial court conducted a hearing to decide whether the jury’s recommended sentence would be imposed. During the interval between the jury trial and the court’s sentencing hearing, final judgment had been entered on the Domino’s conviction. At the court’s sentencing hearing, Ramdass’ counsel argued for the first time that his prior convictions rendered him ineligible for parole under Virginia’s three-strikes law, which denies parole to a person convicted of three separate felony offenses of murder, rape, or armed robbery, which were not part of a common act, transaction, or scheme. Va. Code Ann. §53.1—151(B1) (1993).

    Petitioner’s counsel also stated that three jurors contacted by petitioner’s counsel after the verdict expressed the opinion that a life sentence would have been imposed had they known Ramdass would not be eligible for parole. These jurors were not identified by name, were not produced for testimony, and provided no formal or sworn statements supporting defense counsel’s representations. App. 95. Rejecting petitioner’s arguments for a life sentence, the trial court sentenced petitioner to death.

    Ramdass appealed, arguing that his parole ineligibility, as he characterized it, should have been disclosed to the jury. The Virginia Supreme Court rejected the claim, applying its settled law “that a jury should not hear evidence of parole eligibility or ineligibility because it is not a relevant consideration in fixing the appropriate sentence.” Ramdass v. Commonwealth, 246 Va. 413, 426, 437 S. E. 2d 566, 573 (1993).

    The court did not address whether Ramdass had waived the claim by failing to mention the three-strikes law at trial or by not objecting to the instructions that were given. Other Virginia capital defendants in Ramdass’ position had been raising the issue at trial, despite existing Virginia law to the contrary. E.g., Mickens v. Commonwealth, 249 Va. 423, 424, 457 S. E. 2d 9, 10 (1995); O’Dell v. Thompson, 502 U.S. 995, 996, n. 3 (1991) (Blackmun, J., respecting denial of certiorari); Mueller v. Commonwealth, 244 Va. 386, 408—409, 422 S. E. 2d 380, 394 (1992); Eaton v. Commonwealth, 240 Va. 236, 244, 397 S. E. 2d 385, 390 (1990).

    From the State Supreme Court’s denial of his claims on direct review, Ramdass filed a petition for a writ of certiorari in this Court. One of his arguments was that the judge should have instructed the jury that he was ineligible for parole. While the petition was pending, we decided Simmons v. South Carolina, 512 U.S. 154 (1994), which held that where a defendant was parole ineligible under state law at the time of the jury’s death penalty deliberations, the jury should have been informed of that fact. We granted Ramdass’ petition for certiorari and remanded the case for reconsideration in light of Simmons. Ramdass v. Virginia, 512 U.S. 1217 (1994).

    On remand, the Virginia Supreme Court affirmed Ramdass’ death sentence, concluding that Simmons applied only if Ramdass was ineligible for parole when the jury was considering his sentence. Ramdass v. Commonwealth, 248 Va. 518, 450 S. E. 2d 360 (1994). The court held that Ramdass was not parole ineligible when the jury considered his sentence because the Kayani murder conviction was not his third conviction for purposes of the three-strikes law. In a conclusion not challenged here, the court did not count the 1988 robbery conviction as one which qualified under the three-strikes provision. (It appears the crime did not involve use of a weapon.) 

   The court also held the Domino’s robbery did not count as a conviction because no final judgment had been entered on the verdict. Thus, the only conviction prior to the Kayani murder verdict counting as a strike at the time of the sentencing trial was for the Pizza Hut robbery. Unless the three-strikes law was operative, Ramdass was eligible for parole because, at the time of his trial, murder convicts became eligible for parole in 25 years. Va. Code Ann. §53.1—151(C) (1993). Under state law, then, Ramdass was not parole ineligible at the time of sentencing; and the Virginia Supreme Court declined to apply Simmons to reverse Ramdass’ sentence.

    Ramdass filed a petition for a writ of certiorari contending that the Virginia Supreme Court misapplied Simmons, and we again denied certiorari. Ramdass v. Virginia, 514 U.S. 1085 (1995). After an unsuccessful round of postconviction proceedings in Virginia courts, Ramdass sought habeas corpus relief in federal court. He argued once more that the Virginia Supreme Court erred in not applying Simmons. The District Court granted relief. 28 F. Supp. 2d 343 (ED Va. 1998). The Court of Appeals reversed. 187 F.3d, at 407. When Ramdass filed a third petition for a writ of certiorari, we stayed his execution, 528 U.S. 1015 (1999), and granted certiorari, 528 U.S. 1068 (2000). Ramdass contends he was entitled to a jury instruction of parole ineligibility under the Virginia three-strikes law. Rejecting the contention, we now affirm.

II

    Petitioner bases his request for habeas corpus relief on Simmons, supra. The premise of the Simmons case was that, under South Carolina law, the capital defendant would be ineligible for parole if the jury were to vote for a life sentence. Future dangerousness being at issue, the plurality opinion concluded that due process entitled the defendant to inform the jury of parole ineligibility, either by a jury instruction or in arguments by counsel. In our later decision in O’Dell v. Netherland, 521 U.S. 151, 166 (1997), we held that Simmons created a new rule for purposes of Teague v. Lane, 489 U.S. 288 (1989). O’Dell reaffirmed that the States have some discretion in determining the extent to which a sentencing jury should be advised of probable future custody and parole status in a future dangerousness case, subject to the rule of Simmons. We have not extended Simmons to cases where parole ineligibility has not been established as a matter of state law at the time of the jury’s future dangerousness deliberations in a capital case.

    Whether Ramdass may obtain relief under Simmons is governed by the habeas corpus statute, 28 U.S.C. § 2254(d)(1) (1994 ed., Supp. III), which forbids relief unless the state-court adjudication of a federal claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” As explained in Justice O’Connor’s opinion for the Court in Williams v. Taylor, 529 U.S. ___, ___ (2000) (slip op., at 15), a state court acts contrary to clearly established federal law if it applies a legal rule that contradicts our prior holdings or if it reaches a different result from one of our cases despite confronting indistinguishable facts.

    The statute also authorizes federal habeas corpus relief if, under clearly established federal law, a state court has been unreasonable in applying the governing legal principle to the facts of the case. A state determination may be set aside under this standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled. The Virginia Supreme Court’s ruling in the case before us was neither contrary to Simmons nor an unreasonable application of its rationale.

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

    Simmons created a workable rule. The parole-ineligibility instruction is required only when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole under state law. 512 U.S., at 156 (plurality opinion) (limiting holding to situations where “state law prohibits the defendant’s release on parole”); id., at 165, n. 5 (relying on fact that Simmons was “ineligible for parole under state law”); id., at 176 (O’Connor, J., concurring) (citing state statutes to demonstrate that for Simmons “the only available alternative sentence to death … was life imprisonment without [the] possibility of parole”). The instruction was required in Simmons because it was agreed that “an instruction informing the jury that petitioner is ineligible for parole is legally accurate.” Id., at 166.

    In this case, a Simmons instruction would not have been accurate under the law; for the authoritative determination of the Virginia Supreme Court is that petitioner was not ineligible for parole when the jury considered his sentence. In Simmons the defendant had “conclusively established” his parole ineligibility at the time of sentencing. Id., at 158. Ramdass had not. In Simmons, a sentence had been imposed for the defendant’s prior conviction and he pleaded guilty. Ramdass’ Domino’s case was tried to a jury and no sentence had been imposed. While a South Carolina defendant might challenge a guilty plea, the grounds for doing so are limited, see Rivers v. Strickland, 264 S. C. 121, 124, 213 S. E. 2d 97, 98, (1975) (“The general rule is that a plea of guilty, voluntarily and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses, including claims of violation of constitutional rights prior to the plea”); see also Whetsell v. South Carolina, 276 S. C. 295, 296, 277 S. E. 2d 891, 892, (1981), and, in all events, such a motion cannot seek to set aside a jury verdict or be considered a post-trial motion, for there was no trial or jury verdict in the case. 512 U.S., at 156. Simmons further does not indicate that South Carolina law considered a guilty plea and sentence insufficient to render the defendant parole ineligible upon conviction of another crime. Material differences exist between this case and Simmons, and the Virginia Supreme Court’s decision is not contrary to the rule Simmons announced.

    Ramdass makes two arguments to equate his own case with Simmons. Neither contention refutes the critical point that he was not ineligible for parole as a matter of state law at the time of his sentencing trial. First he contends that the Simmons petitioner was not parole ineligible at the time of his sentencing trial. According to Ramdass, a South Carolina prisoner is not parole ineligible until the State Board of Probation makes a formal determination of parole ineligibility and the state board had not done so when the capital sentencing jury fixed Simmons’ penalty.

    This argument is without merit. Virginia does not argue that Ramdass was parole eligible because a parole board had not acted. It argues Ramdass was still parole eligible at the time of the sentencing trial by reason of his then criminal record as it stood under state law. We further note that Ramdass bases his argument on briefs and the record filed in Simmons.

    A failure by a state court to glean information from the record of a controlling decision here and to refine further holdings accordingly does not necessarily render the state-court ruling “contrary to, or … an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States.” §2254(d)(1). On review of state decisions in habeas corpus, state courts are responsible for a faithful application of the principles set out in the controlling opinion of the Court.

    Second, Ramdass argues Simmons allowed a prisoner to obtain a parole-ineligibility instruction even though “hypothetical future events” (such as escape, pardon, or a change in the law) might mean the prisoner would, at some point, be released from prison. This argument is likewise of no assistance to Ramdass. The Simmons petitioner was, as a matter of state law, ineligible for parole at the time of the sentencing trial. The State was left to argue that future events might change this status or otherwise permit Simmons to reenter society. Id., at 166.

    Ramdass’ situation is just the opposite. He was eligible for parole at the time of his sentencing trial and is forced to argue that a hypothetical future event (the entry of judgment on the Domino’s convictions) would render him parole ineligible under state law, despite his current parole-eligible status. This case is not parallel to Simmons on the critical point. The differences between the cases foreclose the conclusion that the Virginia Supreme Court’s decision denying Ramdass relief was contrary to Simmons.

    Ramdass contends the Virginia Supreme Court nevertheless was bound to extend Simmons to cover his circumstances. He urges us to ignore the legal rules dictating his parole eligibility under state law in favor of what he calls a functional approach, under which, it seems, a court evaluates whether it looks like the defendant will turn out to be parole ineligible. We do not agree that the extension of Simmons is either necessary or workable; and we are confident in saying that the Virginia Supreme Court was not unreasonable in refusing the requested extension.

    Simmons applies only to instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison. Petitioner’s proposed rule would require courts to evaluate the probability of future events in cases where a three-strikes law is the issue. Among other matters, a court will have to consider whether a trial court in an unrelated proceeding will grant postverdict relief, whether a conviction will be reversed on appeal, or whether the defendant will be prosecuted for fully investigated yet uncharged crimes. If the inquiry is to include whether a defendant will, at some point, be released from prison, even the age or health of a prisoner facing a long period of incarceration would seem relevant.

    The possibilities are many, the certainties few. If the Simmons rule is extended beyond when a defendant is, as a matter of state law, parole ineligible at the time of his trial, the State might well conclude that the jury would be distracted from the other vital issues in the case. The States are entitled to some latitude in this field, for the admissibility of evidence at capital sentencing was, and remains, an issue left to the States, subject of course to federal requirements, especially, as relevant here, those related to the admission of mitigating evidence. Id., at 168; California v. Ramos, 463 U.S. 992 (1983).

    By eliminating Simmons’ well-understood rule, petitioner’s approach would give rise to litigation on a peripheral point. Parole eligibility may be unrelated to the circumstances of the crime the jury is considering or the character of the defendant, except in an indirect way. Evidence of potential parole ineligibility is of uncertain materiality, as it can be overcome if a jury concludes that even if the defendant might not be paroled, he may escape to murder again, see Garner v. Jones, 529 U.S. ___ (2000); he may be pardoned; he may benefit from a change in parole laws; some other change in the law might operate to invalidate a conviction once thought beyond review, see Bousley v. United States, 523 U.S. 614 (1998); or he may be no less a risk to society in prison, see United States v. Battle, 173 F.3d 1343 (CA11 1999), cert. denied, 529 U.S. ___ (2000). The Virginia Supreme Court had good reason not to extend Simmons beyond the circumstances of that case, which included conclusive proof of parole ineligibility under state law at the time of sentencing.

    A jury evaluating future dangerousness under Virginia law considers all of the defendant’s recent criminal history, without being confined to convictions. As we have pointed out, the Domino’s Pizza conviction was not even a part of the prosecution’s main case in the sentencing proceedings. Parole ineligibility, on the other hand, does relate to formal criminal proceedings.

    The State is entitled to some deference, in the context of its own parole laws, in determining the best reference point for making the ineligibility determination. Given the damaging testimony of the criminal acts in the spree Ramdass embarked upon in the weeks before the Kayani murder, it is difficult to say just what weight a jury would or should have given to the possibility of parole; and it was not error for the State to insist upon an accurate assessment of the parole rules by using a trial court judgment as the measuring point.

    As we have explained, the dispositive fact in Simmons was that the defendant conclusively established his parole ineligibility under state law at the time of his trial. Ramdass did not because of the judicial determination Virginia uses to establish a conviction’s finality under its parole law. We note that Virginia’s rule using judgment in the Domino’s case to determine parole ineligibility is not arbitrary by virtue of Virginia’s also allowing evidence of the defendant’s prior criminal history.

    To demonstrate Ramdass’ evil character and his propensity to commit violent acts in the future, the prosecutor used Ramdass’ prior criminal conduct, supported in some cases (although not in the Domino’s case) by evidence in the form of the resulting jury verdicts. Virginia law did not require a guilty verdict, a criminal judgment, or the exhaustion of an appeal before prior criminal conduct could be introduced at trial. Virginia law instead permitted unadjudicated prior bad acts to be introduced as evidence at trial. See Watkins v. Commonwealth, 229 Va. 469, 487, 331 S. E. 2d 422, 435 (1985). For example, the prosecutor was permitted to use the shooting of Selassie in aggravation, even though no verdict had been rendered in that case. The prosecutor likewise asked Ramdass about the July murder in Alexandria. App. 64. (Despite Ramdass’ sworn denial, he pleaded guilty to the crime after being sentenced to death in this case.)

    The guilty verdict of the jury in the Domino’s case, therefore, was not a necessary prerequisite to the admissibility of the conduct underlying the Domino’s crime. Ramdass, furthermore, could not object to the Commonwealth’s use of the Domino’s crime at sentencing, for it was he who introduced the evidence. The Commonwealth did not mention the crime in its opening statement and did not present evidence of the crime in its case in chief. Ramdass used the Domino’s crime to argue he would never be out of jail; and he overused the crime even for that purpose. Counsel advised the jury the Domino’s crime would result in “at least another life sentence,” when in fact the sentence imposed was for 18 years. Id., at 50.

    The various public opinion polls to which we are pointed cast no doubt upon the rule adopted by the State. We are referred, for example, to a poll whose result is reported in Paduano & Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Colum. Human Rights L. Rev. 211 (1987). The poll is said to permit the conclusion that 67% of potential jurors would be more likely to give a life sentence instead of death if they knew the defendant had to serve at least 25 years in prison before being parole eligible.

    The poll is not a proper consideration in this Court. Mere citation of a law review to a court does not suffice to introduce into evidence the truth of the hearsay or the so-called scientific conclusions contained within it. Had the creators of the poll taken the stand in support of the poll’s application to Ramdass’ case, the poll likely would have been demonstrated to be inadmissible. The poll’s reporters concede the poll was limited in scope, surveying 40 individuals eligible for jury service. Id., at 221.

    The poll was limited to jurors in one Georgia county, jurors who would never serve on a Fairfax County, Virginia, jury. The poll was supervised by the Southern Prisoners’ Defense Committee, a group having an interest in obtaining life sentences for the inmates it represents. The poll was conducted in the context of ongoing litigation of a particular defendant’s death sentence. The article makes no reference to any independent source confirming the propriety of the sampling methodology.

    The poll asked but four questions. It failed to ask those who were surveyed why they held the views that they did or to ascertain their reaction to evidence supplied by the prosecution designed to counter the parole information. No data indicates the questions were framed using methodology employed by reliable pollsters. No indication exists regarding the amount of time participants were given to answer.

    The reporters of the poll contend other similar, limited studies support the results, yet those studies were conducted over the telephone “by defense attorneys in connection with motions for new trials.” These, and other, deficiencies have been relied upon by courts with factfinding powers to exclude or minimize survey evidence. E.g., Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 264 (CA5 1980) (inadequate survey universe); Dreyfus Fund, Inc. v. Royal Bank of Canada, 525 F. Supp. 1108, 1116 (SDNY 1981) (unreliable sampling technique); General Motors Corp. v. Cadillac Marine & Boat Co., 226 F. Supp. 716, 737 (WD Mich. 1964 (only 150 people surveyed); Kingsford Products Co. v. Kingsfords, Inc., 715 F. Supp. 1013, 1016 (Kan. 1989) (sample drawn from wrong area); Conagra, Inc. v. Geo. A. Hormel & Co., 784 F. Supp. 700, 726 (Neb. 1992) (survey failed to ask the reasons why the participant provided the answer he selected); Sterling Drug, Inc. v. Bayer AG, 792 F. Supp. 1357, 1373 (SDNY 1992) (questions not properly drafted); American Home Products Corp. v. Proctor & Gamble Co., 871 F. Supp. 739, 761 (NJ 1994) (respondents given extended time to answer); Gucci v. Gucci Shops, Inc., 688 F. Supp. 916, 926 (SDNY 1988) (surveys should be conducted by recognized independent experts); Schering Corp. v. Schering Aktiengesellschaft, 667 F. Supp 175, 189 (NJ 1987) (attorney contact and interference invalidates poll); see generally Toys “R” Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F. Supp 1189 (EDNY 1983) (listing factors to consider in determining whether a survey is reliable). The poll reported in the Columbia Human Rights Law Review should not be considered by this Court. See Stanford v. Kentucky, 492 U.S. 361, 377 (1989) (plurality opinion). It is the Virginia Supreme Court’s decision rejecting Ramdass’ claims that is under review in this habeas proceeding. It was not required to consult public opinion polls.

    Ramdass’ claim is based on the contention that it is inevitable that a judgment of conviction would be entered for his Domino’s crime. He calls the entry of judgment following a jury verdict a “ministerial act whose performance was foreseeable, imminent, and inexorable.” Brief for Petitioner 21, 36.

    Petitioner cites no authority for the proposition that a judicial officer’s determination that final judgment should be entered (as opposed to the clerk’s noting of the final judgment in the record) is a ministerial act. We are not surprised. We doubt most lawyers would consider a criminal case concluded in the trial court before judgment is entered, for it is judgment which signals that the case has become final and is about to end or reach another stage of proceedings. See Va. Sup. Ct. Rule 1:1, 5A:6 (1999) (requiring notice of appeal to be filed “within 30 days after entry of final judgment”).

    Post-trial motions are an essential part of Virginia criminal law practice, as discussed in leading treatises such as J. Costello, Virginia Criminal Law and Procedure 829 (2d ed. 1995), and R. Bacigal, Virginia Criminal Procedure 337 (2d ed. 1989). Under Virginia Supreme Court Rule 3A:15(b) (1999), a verdict of guilty may be set aside “for error committed during the trial or if the evidence is insufficient as a matter of law to sustain a conviction.” A few examples from the reports of Virginia decisions demonstrate it to be well-established procedure in Virginia for trial courts to consider and grant motions to set aside jury verdicts. E.g., Floyd v. Commonwealth, 219 Va. 575, 576—577, 249 S. E. 2d 171, 172 (1978); Payne v. Commonwealth, 220 Va. 601, 602—603, 260 S. E. 2d 247, 248 (1979); Johnson v. Commonwealth, 20 Va. App. 547, 553, 458 S. E. 2d 599, 601 (1995); Walker v. Commonwealth, 4 Va. App. 286, 291, 356 S. E. 2d 853, 856 (1987); Gorham v. Commonwealth, 15 Va. App. 673, 674, 426 S. E. 2d 493, 494 (1993); Carter v. Commonwealth, 10 Va. App. 507, 509, 393 S. E. 2d 639, 640 (1990); Cullen v. Commonwealth, 13 Va. App. 182, 184, 409 S. E. 2d 487, 488 (1991).

    The motion to set aside may be filed and resolved before judgment is entered, e.g., Walker, supra, at 291, 356 S. E. 2d, at 856, and trial courts may conduct hearings or allow evidence to be introduced on these motions. Postverdict motions may be granted despite the denial of a motion to strike the evidence made during trial, e.g., Gorham, supra, at 674, 426 S. E. 2d, at 494, or after denial of a pretrial motion to dismiss, Cullen, supra, at 184, 409 S. E. 2d, at 488. Federal judges familiar with Virginia practice have held that postverdict motions give a defendant a full and fair opportunity to raise claims of trial error, Di Paola v. Riddle, 581 F.2d 1111, 1113 (CA4 1978). 

    In contexts beyond the three-strikes statute, Virginia courts have held that the possibility of postverdict relief renders a jury verdict uncertain and unreliable until judgment is entered. E.g., Dowel v. Commonwealth, 12 Va. App. 1145, 408 S. E. 2d 263, 265 (1991); see also Smith v. Commonwealth, 134 Va. 589, 113 S. E. 707 (1922); Blair v. Commonwealth, 66 Va. 850, 858, 861 (1874) (availability of postverdict motions mean it is at the defendant’s option whether to “let judgment be entered in regular order”). In one recent case, the Virginia Court of Appeals relied on Rule 3A:15 to hold, contrary to petitioner’s contention here, that it is an “incorrect statement of the law” to say that the trial court has no concern with the proceedings after the jury’s verdict. Davis v. Commonwealth, 2960—98—2, 2000 WL 135148, *4, n. 1 (Va. App., Feb. 8, 2000).

    The time for Ramdass to file a motion to set aside the Domino’s verdict had not expired when the jury was deliberating on the sentence for Kayani’s murder; and he concedes he could have filed post-verdict motions. The Domino’s case was pending in a different county from the Kayani murder trial and the record contains no indication that Ramdass’ counsel advised the judge in the Kayani case that he would not pursue postverdict relief in the Domino’s case. The Virginia Supreme Court was reasonable to reject a parole ineligibility instruction for a defendant who would become ineligible only in the event a trial judge in a different county entered final judgment in an unrelated criminal case.

    Ramdass complains that the Virginia Supreme Court’s selection of the entry of judgment rather than the jury verdict is arbitrary. He points out that a trial court may set the judgment aside within 21 days after its entry. Va. Sup. Ct. Rule 1:1 (1999). Appeal is also permitted. We agree with Ramdass that the availability of postjudgment relief in the trial court or on appeal renders uncertain the finality and reliability of even a judgment in the trial court. Our own jurisprudence under Teague v. Lane, for example, does not consider a Virginia-state-court conviction final until the direct review process is completed. O’Dell v. Netherland, 521 U.S., at 157.

    States may take different approaches and we see no support for a rule that would require a State to declare a conviction final for purposes of a three-strikes statute once a verdict has been rendered. Verdicts may be overturned by the state trial court, by a state appellate court, by the state supreme court, by a state court on collateral attack, by a federal court in habeas corpus, or by this Court on review of any of these proceedings. Virginia’s approach, which would permit a Simmons instruction despite the availability of postjudgment relief that might, the day after the jury is instructed that the defendant is parole ineligible, undo one of the strikes supporting the instruction, provided Ramdass sufficient protection. A judgment, not a verdict, is the usual measure for finality in the trial court.

    Our conclusion is confirmed by a review of petitioner’s conduct in this litigation. The current claim that it was certain at the time of trial that Ramdass would never be released on parole in the event the jury sentenced him to life is belied by the testimony his counsel elicited from him at sentencing. Ramdass’ counsel asked him, “Are you going to spend the rest of your life in prison?” Despite the claim advanced now that parole would be impossible, the answer counsel elicited from Ramdass at trial was, “I don’t know.” We think Ramdass’ answer at trial is an accurate assessment of the uncertainties that surrounded his parole and custody status at the time of trial.

    In like manner, before the Virginia Supreme Court’s decision now challenged as unreasonable, petitioner had not argued that his parole eligibility should have been determined based on the date of the Domino’s verdict (January 7, 1993) rather than the date the judgment was entered (February 18, 1993). He did not mention the three-strikes law at trial, although the Domino’s verdict had already been returned. Petitioner’s brief to the Virginia Supreme Court on remand from this Court conceded that the appropriate date to consider for the Domino’s crime was the date of judgment.

    His brief states Ramdass “was convicted … on 18 February 1993 of armed robbery” and that “[o]f course, the … 18 February convictio[n] occurred after the jury findings in this case.” App. 123—124. Thus the Virginia Supreme Court treated the Domino’s conviction in the manner urged by petitioner. Petitioner’s change of heart on the controlling date appears based on a belated realization that the 1988 robbery conviction did not qualify as a strike, meaning that he needed the Domino’s conviction to count. To accomplish the task, petitioner began arguing that the date of the jury verdict controlled. His original position, however, is the one in accord with Virginia law.

    State trial judges and appellate courts remain free, of course, to experiment by adopting rules that go beyond the minimum requirements of the Constitution. In this regard, we note that the jury was not informed that Ramdass, at the time of trial, was eligible for parole in 25 years, that the trial judge had the power to override a recommended death sentence, or that Ramdass’ prior convictions were subject to being set aside by the trial court or on appeal. Each statement would have been accurate as a matter of law, but each statement might also have made it more probable that the jury would have recommended a death sentence. We further note Virginia has expanded Simmons by allowing a defendant to obtain a Simmons instruction even where the defendant’s future dangerousness is not at issue. Yarbrough v. Commonwealth, 258 Va. 347, 519 S. E. 2d 602 (1999).

    Likewise, Virginia has, after Ramdass’ conviction, eliminated parole for capital defendants sentenced to life in prison. The combination of Yarbrough and the elimination of parole means that all capital defendants in Virginia now receive a Simmons instruction if they so desire. In circumstances like those presented here, even if some instruction had been given on the subject addressed by Simmons, the extent to which the trial court should have addressed the contingencies that could affect finality of the other convictions is not altogether clear. A full elaboration of the various ways to set a conviction aside or grant a new trial might not have been favorable to the petitioner. In all events the Constitution does not require the instruction that Ramdass now requests. The sentencing proceeding was not invalid by reason of its omission.

III

    The Virginia Supreme Court’s decision to deny petitioner relief was neither contrary to, nor an unreasonable application of, Simmons. The United States Court of Appeals for the Fourth Circuit was required to deny him relief under 28 U.S.C. § 2254 (1994 ed. and Supp. III), and we affirm the judgment.

It is so ordered.

 

 

 
 
 
 
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