RAMDASS v. ANGELONE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS

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Syllabus
RAMDASS v. ANGELONE, DIRECTOR, VIRGINIA
DEPARTMENT OF CORRECTIONS
certiorari to the united states court of appeals for
the fourth circuit
No. 99–7000. Argued April 18, 2000—Decided June 12, 2000
Petitioner Ramdass was sentenced to death in Virginia for the murder
of Mohammed Kayani. Under Virginia law, a conviction does not be-
come final until the jury returns a verdict and, some time thereafter,
the judge enters a final judgment of conviction. At the time of the
Kayani sentencing trial, a final judgment had been entered against
Ramdass for an armed robbery at a Pizza Hut restaurant and a jury
had found him guilty of an armed robbery at a Domino’s Pizza restau-
rant, but no final judgment had been entered. The prosecutor argued
future dangerousness at the Kayani sentencing trial, claiming that Ram-
dass would commit further violent crimes if released. The jury rec-
ommended death. After final judgment was entered on the Domino’s
conviction, the Kayani judge held a hearing to consider whether to
impose the recommended sentence. Arguing for a life sentence, Ram-
dass claimed that his prior convictions made him ineligible for parole
under Virginia’s three-strikes law, which denies parole to a person con-
victed of three separate felony offenses of murder, rape, or armed
robbery, which were not part of a common act, transaction, or scheme.
The court sentenced Ramdass to death, and the Virginia Supreme Court
affirmed. On remand from this Court, the Virginia Supreme Court
again affirmed the sentence, declining to apply the holding of Simmons
v. South Carolina, 512 U. S. 154, that a jury considering imposing death
should be told if the defendant is parole ineligible under state law.
The court concluded that Ramdass was not parole ineligible when the
jury was considering his sentence because the Domino’s crime, in which
no final judgment had been entered, did not count as a conviction for
purposes of the three-strikes law. Ultimately, Ramdass sought federal
habeas relief. The District Court granted his petition, but the Court
of Appeals reversed.
Held: The judgment is affirmed.
187 F. 3d 396, affirmed.
Justice Kennedy, joined by The Chief Justice, Justice Scalia,
and Justice Thomas, concluded that Ramdass was not entitled to a
jury instruction on parole ineligibility under Virginia’s three-strikes
law. Pp. 165–178.

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Syllabus
(a) Whether Ramdass may obtain relief under Simmons is governed
by the habeas corpus statute, 28 U. S. C. § 2254(d)(1), which forbids re-
lief unless a state-court adjudication of a federal claim is contrary to,
or an unreasonable application of, clearly established federal law as
determined by this Court. The Virginia Supreme Court’s ruling here
was neither contrary to Simmons nor an unreasonable application of its
rationale. Pp. 165–166.
(b) Simmons created a workable rule. The parole-ineligibility in-
struction is required only when, assuming the jury fixes a life sentence,
the defendant is ineligible for parole under state law. The instruction
was required in Simmons because it was legally accurate. However,
that is not the case here, for the Virginia Supreme Court’s authorita-
tive determination is that Ramdass was not parole ineligible when the
jury considered his sentence. Material differences exist between this
case and Simmons: The Simmons defendant had conclusively estab-
lished his parole ineligibility at the time of sentencing and Ramdass had
not; a sentence had been imposed for the Simmons defendant’s prior
conviction and he pleaded guilty, while the Domino’s case was tried to a
jury and no sentence had been imposed; and the grounds for challenging
a guilty plea in the Simmons defendant’s State are limited. Ramdass’
additional attempts to equate his case with Simmons do not refute the
critical point that he was not parole ineligible as a matter of state law
at the time of his sentencing trial. Pp. 166–169.
(c) Extending Simmons to cover situations where it looks like a
defendant will turn out to be parole ineligible is neither necessary nor
workable, and the Virginia Supreme Court was not unreasonable in
refusing to do so. Doing so would require courts to evaluate the prob-
ability of future events in cases where a three-strikes law is the issue.
The States are entitled to some latitude in this field, for the admissibil-
ity of evidence at capital sentencing is an issue left to them, subject
to federal requirements. Extending Simmons would also give rise to
litigation on a peripheral point, since parole eligibility may be only in-
directly related to the circumstances of the crime being considered
and is of uncertain materiality. The State is entitled to some deference
in determining the best reference point for making the ineligibility
determination. Virginia’s rule using judgment in the Domino’s case to
determine parole ineligibility is not arbitrary by virtue of Virginia’s also
allowing the prosecutor to introduce evidence of Ramdass’ unadju-
dicated prior bad acts to show future dangerousness. Public opinion
polls showing the likely effect of parole ineligibility on jury verdicts cast
no doubt upon the State’s rule. Ramdass’ claim is based on the conten-
tion that it is inevitable that a judgment of conviction would be entered
for his Domino’s crime, but it is a well-established practice for Virginia

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Syllabus
courts to consider and grant post-trial motions to set aside jury verdicts.
Ramdass’ time to file such a motion in the Domino’s case had not ex-
pired when the jury was deliberating the Kayani sentence. Ramdass
complains that using the entry of judgment rather than the jury verdict
to determine finality is arbitrary because the availability of postjudg-
ment relief renders uncertain the judgment’s finality and reliability.
However, States may take different approaches, and a judgment is the
usual measure of finality in the trial court. Ramdass’ conduct in this
litigation confirms the conclusion reached here. He did not indicate at
trial that he thought he would never be paroled or mention the three-
strikes law at trial, and it appears he did not argue that his parole
ineligibility should have been determined based on the date of the
Domino’s verdict until the Virginia Supreme Court declared that an-
other one of his convictions did not count as a strike. Pp. 169–177.
(d) State courts remain free to adopt rules that go beyond the Consti-
tution’s minimum requirements. In fact, Virginia allows a Simmons
instruction even where future dangerousness is not at issue; and since
it has also eliminated parole for capital defendants sentenced to life in
prison, all capital defendants now receive the instruction. Pp. 177–178.
Justice O’Connor agreed that Ramdass is not entitled to habeas
relief. The standard of review applicable in federal habeas cases is
narrower than that applicable on direct review. Whether a defend-
ant is entitled to inform the jury that he is parole ineligible is ultimately
a federal law question, but this Court looks to state law to determine
the defendant’s parole status. Under Virginia law, Ramdass was not
parole ineligible. Were the entry of judgment a purely ministerial act
under Virginia law, the facts in this case would have been materially
indistinguishable from those in Simmons v. South Carolina, 512 U. S.
154. Such was not the case here, however, for, under Virginia law, a
guilty verdict does not inevitably lead to the entry of a judgment order.
Consequently, the Virginia Supreme Court’s decision was neither con-
trary to, nor an unreasonable application of, Simmons. Pp. 178–181.
Kennedy, J., announced the judgment of the Court and delivered
an opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ.,
joined. O’Connor, J., filed an opinion concurring in the judgment, post,
p. 178. Stevens, J., filed a dissenting opinion, in which Souter, Gins-
burg, and Breyer, JJ., joined, post, p. 182.
David I. Bruck argued the cause for petitioner. With him
on the briefs were F. Nash Bilisoly, by appointment of the
Court, 528 U. S. 1152, John M. Ryan, and Michele J. Brace.

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Opinion of Kennedy, J.
Katherine P. Baldwin, Assistant Attorney General of
Virginia, argued the cause for respondent. With her on
the brief was Mark L. Earley, Attorney General.
Justice Kennedy announced the judgment of the Court
and delivered an opinion, in which The Chief Justice,
Justice Scalia, and Justice Thomas join.
Petitioner received a death sentence in the Commonwealth
of Virginia for murder in the course of robbery. On review
of a decision denying relief in federal habeas corpus, he
seeks to set aside the death sentence in reliance on Simmons
v. South Carolina, 512 U. S. 154 (1994). He argues the
jury should have been instructed of his parole ineligibility
based on prior criminal convictions. We reject his claims
and conclude Simmons is inapplicable to petitioner since
he was not parole ineligible when the jury considered his
case, nor would he have been parole ineligible by reason of
a conviction in the case then under consideration by the jury.
He is not entitled to the relief he seeks.
I
Sometime after midnight on September 2, 1992, Mo-
hammed 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 cus-
tomers were not killed as well.

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The murder of Kayani was no isolated incident. Just four
months earlier, after serving time for a 1988 robbery con-
viction, 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 taxi-
cab 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 Sep-
tember 11, 1992, nine days after the Kayani shooting. Peti-
tioner faced a series of criminal prosecutions. For reasons
we discuss later, the sequence of events in the criminal pro-
ceedings 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 con-
viction and pronounce sentence, unless he or she deter-
mines 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 com-
pleted, with the jury recommending that petitioner be sen-
tenced 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

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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 circum-
stance, 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 propo-
sition, 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 hun-
dred 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 ac-
count 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

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was the basis for the prosecution’s case in the sentencing
hearing. Evidence of the crime spree did not depend on for-
mal convictions for its admission. The prosecutor, more-
over, 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 ques-
tions 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 re-
sponse: “ ‘ “You must not concern yourself with matters that
will occur after you impose your sentence, but you may im-
pose [sic] that your sentence will be the legal sentence im-
posed 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 con-
sider, 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 recommend-
ing 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

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robbery, which were not part of a common act, transaction,
or scheme. Va. Code Ann. § 53.1–151(B1) (1993). Petition-
er’s counsel also stated that three jurors contacted by peti-
tioner’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 testi-
mony, and provided no formal or sworn statements support-
ing 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 con-
sideration in fixing the appropriate sentence.” Ramdass v.
Commonwealth, 246 Va. 413, 426, 437 S. E. 2d 566, 573 (1993).
The court did not address whether Ramdass had waived the
claim by failing to mention the three-strikes law at trial or
by not objecting to the instructions that were given. Other
Virginia capital defendants in Ramdass’ position had been
raising the issue at trial, despite existing Virginia law to the
contrary. E. g., Mickens v. Commonwealth, 249 Va. 423,
424, 457 S. E. 2d 9, 10 (1995); O’Dell v. Thompson, 502 U. S.
995, 996–997, n. 3 (1991) (Blackmun, J., respecting denial of
certiorari); Mueller v. Commonwealth, 244 Va. 386, 408–409,
422 S. E. 2d 380, 394 (1992); Eaton v. Commonwealth, 240
Va. 236, 244, 397 S. E. 2d 385, 390 (1990).
From the State Supreme Court’s denial of his claims on
direct review, Ramdass filed a petition for a writ of certiorari
in this Court. One of his arguments was that the judge
should have instructed the jury that he was ineligible for
parole. While the petition was pending, we decided Sim-
mons v. South Carolina, 512 U. S. 154 (1994), which held that
where a defendant was parole ineligible under state law at

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the time of the jury’s death penalty deliberations, the jury
should have been informed of that fact. We granted Ram-
dass’ petition for certiorari and remanded the case for re-
consideration in light of Simmons. Ramdass v. Virginia,
512 U. S. 1217 (1994).
On remand, the Virginia Supreme Court affirmed Ram-
dass’ death sentence, concluding that Simmons applied only
if Ramdass was ineligible for parole when the jury was con-
sidering 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 sen-
tence 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 in-
volve use of a weapon.) The court also held the Domino’s
robbery did not count as a conviction because no final judg-
ment had been entered on the verdict. Thus, the only con-
viction prior to the Kayani murder verdict counting as a
strike at the time of the sentencing trial was for the Pizza
Hut robbery. Unless the three-strikes law was operative,
Ramdass was eligible for parole because, at the time of his
trial, murder convicts became eligible for parole in 25 years.
Va. Code Ann. § 53.1–151(C) (1993). Under state law, then,
Ramdass was not parole ineligible at the time of sentencing;
and the Virginia Supreme Court declined to apply Simmons
to reverse Ramdass’ sentence.
Ramdass filed a petition for a writ of certiorari contending
that the Virginia Supreme Court misapplied Simmons, and
we denied certiorari. Ramdass v. Virginia, 514 U. S. 1085
(1995). After an unsuccessful round of postconviction pro-
ceedings in Virginia courts, Ramdass sought habeas corpus
relief in federal court. He argued once more that the Vir-
ginia Supreme Court erred in not applying Simmons. The
District Court granted relief. 28 F. Supp. 2d 343 (ED Va.

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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 plural-
ity 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 deci-
sion 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 ex-
tended 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 applica-
tion of, clearly established Federal law, as determined by
the Supreme Court of the United States.” As explained in
Justice O’Connor’s opinion for the Court in Williams v.
Taylor, 529 U. S. 362, 412–413 (2000), a state court acts con-
trary to clearly established federal law if it applies a legal rule

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that contradicts our prior holdings or if it reaches a different
result from one of our cases despite confronting indistin-
guishable 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 estab-
lished federal law, the state court was unreasonable in refus-
ing 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 Sim-
mons, making the Virginia Supreme Court’s refusal to grant
relief contrary to that case. In his view the Pizza Hut con-
viction 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 hold-
ing to situations where “state law prohibits the defendant’s
release on parole”); id., at 165, n. 5 (relying on fact that Sim-
mons was “ineligible for parole under state law”); id., at 176
(O’Connor, J., concurring) (citing state statutes to demon-
strate that for Simmons “the only available alternative sen-
tence to death . . . was life imprisonment without [the] possi-
bility of parole”). The instruction was required in Simmons
because it was agreed that “an instruction informing the jury

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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 inel-
igible 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 im-
posed 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 de-
fendant 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 in-
dicate that South Carolina law considered a guilty plea and
sentence insufficient to render the defendant parole ineligi-
ble upon conviction of another crime. Material differences
exist between this case and Simmons, and the Virginia Su-
preme 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

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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 argu-
ment is without merit. Virginia does not argue that Ram-
dass 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 appli-
cation 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 “hypo-
thetical 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 Sim-
mons 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 convic-
tions) 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

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Supreme Court’s decision denying Ramdass relief was con-
trary to Simmons.
Ramdass contends the Virginia Supreme Court neverthe-
less was bound to extend Simmons to cover his circum-
stances. 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 say-
ing that the Virginia Supreme Court was not unreasonable
in refusing the requested extension.
Simmons applies only to instances where, as a legal mat-
ter, 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 fu-
ture 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 post-
verdict relief, whether a conviction will be reversed on ap-
peal, or whether the defendant will be prosecuted for fully
investigated yet uncharged crimes. If the inquiry is to in-
clude 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 pos-
sibilities 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).

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170 RAMDASS v. ANGELONE
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By eliminating Simmons’ well-understood rule, petition-
er’s approach would give rise to litigation on a peripheral
point. Parole eligibility may be unrelated to the circum-
stances of the crime the jury is considering or the character
of the defendant, except in an indirect way. Evidence of po-
tential parole ineligibility is of uncertain materiality, as it
can be overcome if a jury concludes that even if the defend-
ant might not be paroled, he may escape to murder again, see
Garner v. Jones, 529 U. S. 244 (2000); he may be pardoned; he
may benefit from a change in parole laws; some other change
in the law might operate to invalidate a conviction once
thought beyond review, see Bousley v. United States, 523
U. S. 614 (1998); or he may be no less a risk to society in
prison, see United States v. Battle, 173 F. 3d 1343 (CA11
1999), cert. denied, 529 U. S. 1022 (2000). The Virginia Su-
preme Court had good reason not to extend Simmons be-
yond the circumstances of that case, which included conclu-
sive proof of parole ineligibility under state law at the time
of sentencing.
A jury evaluating future dangerousness under Virginia
law considers all of the defendant’s recent criminal history,
without being confined to convictions. As we have pointed
out, the Domino’s Pizza conviction was not even a part of
the prosecution’s main case in the sentencing proceedings.
Parole ineligibility, on the other hand, does relate to formal
criminal proceedings. The Commonwealth is entitled to
some deference, in the context of its own parole laws, in de-
termining the best reference point for making the ineligibil-
ity 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 possi-
bility of parole; and it was not error for the Commonwealth
to insist upon an accurate assessment of the parole rules by
using a trial court judgment as the measuring point.

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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. Ram-
dass 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 vir-
tue of Virginia’s also allowing evidence of the defendant’s
prior criminal history. To demonstrate Ramdass’ evil char-
acter and his propensity to commit violent acts in the future,
the prosecutor used Ramdass’ prior criminal conduct, sup-
ported 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 ad-
missibility of the conduct underlying the Domino’s crime.
Ramdass, furthermore, could not object to the Common-
wealth’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

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172 RAMDASS v. ANGELONE
Opinion of Kennedy, J.
“[a]t least another life sentence,” when in fact the sentence
imposed was for 18 years. Id., at 50.
The various public opinion polls to which we are pointed
cast no doubt upon the rule adopted by the Commonwealth.
We are referred, for example, to a poll whose result is re-
ported in Paduano & Smith, Deathly Errors: Juror Misper-
ceptions 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 intro-
duce 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 applica-
tion to Ramdass’ case, the poll likely would have been dem-
onstrated to be inadmissible. The poll’s reporters concede
the poll was limited in scope, surveying 40 individuals eli-
gible 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 on-
going 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 prose-
cution designed to counter the parole information. No data
indicate the questions were framed using methodology em-
ployed by reliable pollsters. No indication exists regard-
ing the amount of time participants were given to answer.

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The reporters of the poll contend other similar, limited stud-
ies support the results, yet those studies were conducted
over the telephone “by defense attorneys in connection with
motions for new trials.” Id., at 223, n. 35. These, and
other, deficiencies have been relied upon by courts with fact-
finding 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 Mo-
tors 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 pro-
vided 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. Proc-
tor & Gamble Co., 871 F. Supp. 739, 761 (NJ 1994) (respond-
ents 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 in-
evitable that a judgment of conviction would be entered for

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174 RAMDASS v. ANGELONE
Opinion of Kennedy, J.
his Domino’s crime. He calls the entry of judgment follow-
ing 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 judg-
ment in the record) is a ministerial act. We are not sur-
prised. 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 proceed-
ings. See Va. Sup. Ct. Rule 1:1, 5A:6 (1999) (requiring no-
tice of appeal to be filed “within 30 days after entry of final
judgment”).
Post-trial motions are an essential part of Virginia crimi-
nal 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 com-
mitted 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. Common-
wealth, 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).

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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. Fed-
eral judges familiar with Virginia practice have held that
postverdict motions give a defendant a full and fair oppor-
tunity to raise claims of trial error, DiPaola 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 un-
reliable until judgment is entered. E. g., Dowell v. Com-
monwealth, 12 Va. App. 1145, 408 S. E. 2d 263, 265 (1991);
see also Smith v. Commonwealth, 134 Va. 589, 113 S. E. 707
(1922); Blair v. Commonwealth, 66 Va. 850, 858, 861 (1874)
(availability of postverdict motions means it is at the defend-
ant’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 con-
tention here, that it is an “incorrect statement of the law”
to say that the trial court has no concern with the pro-
ceedings after the jury’s verdict. Davis v. Commonwealth,
No. 2960–98–2, 2000 WL 135148, *4, n. 1 (Va. App., Feb. 8,
2000) (unpublished).
The time for Ramdass to file a motion to set aside the
Domino’s verdict had not expired when the jury was deliber-
ating on the sentence for Kayani’s murder; and he concedes
he could have filed postverdict motions. The Domino’s case
was pending in a different county from the Kayani murder
trial and the record contains no indication that Ramdass’
counsel advised the judge in the Kayani case that he would
not pursue postverdict relief in the Domino’s case. The
Virginia Supreme Court was reasonable to reject a parole-

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176 RAMDASS v. ANGELONE
Opinion of Kennedy, J.
ineligibility instruction for a defendant who would become
ineligible only in the event a trial judge in a different county
entered final judgment in an unrelated criminal case.
Ramdass complains that the Virginia Supreme Court’s se-
lection 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 di-
rect 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 col-
lateral 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 de-
spite the availability of postjudgment relief that might, the
day after the jury is instructed that the defendant is pa-
role ineligible, undo one of the strikes supporting the in-
struction, provided Ramdass sufficient protection. A judg-
ment, not a verdict, is the usual measure for finality in the
trial court.
Our conclusion is confirmed by a review of petitioner’s con-
duct 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

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177 Cite as: 530 U. S. 156 (2000)
Opinion of Kennedy, J.
now that parole would be impossible, the answer counsel elic-
ited from Ramdass at trial was, “I don’t know.” We think
Ramdass’ answer at trial is an accurate assessment of the
uncertainties that surrounded 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 state-
ment would have been accurate as a matter of law, but each
statement might also have made it more probable that the

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178 RAMDASS v. ANGELONE
O’Connor, J., concurring in judgment
jury would have recommended a death sentence. We fur-
ther 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 ex-
tent to which the trial court should have addressed the con-
tingencies 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 applica-
tion of, Simmons. The United States Court of Appeals for
the Fourth Circuit was required to deny him relief under
28 U. S. C. § 2254 (1994 ed. and Supp. III), and we affirm
the judgment.
It is so ordered.
Justice O’Connor, concurring in the judgment.
In Simmons v. South Carolina, 512 U. S. 154 (1994), a
majority of the Court held that “[w]here the State puts the
defendant’s future dangerousness in issue, and the only avail-
able alternative sentence to death is life imprisonment with-
out possibility of parole, due process entitles the defendant

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O’Connor, J., concurring in judgment
to inform the capital sentencing jury . . . that he is parole
ineligible.” Id., at 178 (O’Connor, J., concurring in judg-
ment); see also id., at 163–164 (plurality opinion). Due proc-
ess requires that “a defendant not be sentenced to death ‘on
the basis of information which he had no opportunity to deny
or explain.’ ” Id., at 175 (O’Connor, J., concurring in judg-
ment) (quoting Skipper v. South Carolina, 476 U. S. 1, 5,
n. 1 (1986)). Accordingly, where the State seeks to demon-
strate that the defendant poses a future danger to society,
he “should be allowed to bring his parole ineligibility to
the jury’s attention” as a means of rebutting the State’s
case. 512 U. S., at 177. I have no doubt that Simmons was
rightly decided.
In this case, because petitioner seeks a writ of habeas cor-
pus rather than the vacatur of his sentence on direct appeal,
the scope of our review is governed by 28 U. S. C. § 2254(d)(1)
(1994 ed., Supp. III). Accordingly, we may grant relief only
if the Virginia Supreme Court’s decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” ibid.; see also Williams v. Taylor, 529 U. S.
362, 402–409 (2000), which in this case is our holding in
Simmons.
The Virginia Supreme Court concluded that Simmons was
inapplicable because petitioner “was not ineligible for parole
when the jury was considering his sentence.” Ramdass v.
Commonwealth, 248 Va. 518, 521, 450 S. E. 2d 360, 361 (1994).
The court noted that, under Virginia law, any person who
has been convicted of three separate felony offenses of mur-
der, rape, or robbery “by the presenting of firearms or other
deadly weapon” “shall not be eligible for parole.” Va. Code
Ann. § 53.1–151(B1) (1993). It explained that Ramdass was
not parole ineligible at the time of his capital sentencing pro-
ceeding because the Kayani murder conviction would not
constitute his third conviction for purposes of § 53.1–151(B1).
Critically, the court held that, although Ramdass had been

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180 RAMDASS v. ANGELONE
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found guilty of the armed robbery of a Domino’s Pizza res-
taurant, that verdict did not count as a prior conviction
under § 53.1–151(B1) because judgment had not yet been
entered on that verdict at the time of Ramdass’ capital sen-
tencing proceeding. 248 Va., at 520, 450 S. E. 2d, at 361.
For the reasons explained in the plurality opinion, the Vir-
ginia Supreme Court’s decision was neither contrary to, nor
an unreasonable application of, our holding in Simmons.
Whether a defendant is entitled to inform the jury that he is
parole ineligible is ultimately a question of federal law, but
we look to state law to determine a defendant’s parole status.
In Simmons, the defendant had “conclusively establish[ed]”
that he was parole ineligible at the time of sentencing, and
the “prosecution did not challenge or question [his] parole
ineligibility.” 512 U. S., at 158. Ramdass, however, was
not ineligible for parole when the jury considered his sen-
tence as the relevant court had not yet entered the judgment
of conviction for the Domino’s Pizza robbery. Were the
entry of judgment a purely ministerial act under Virginia
law, in the sense that it was foreordained, I would agree with
petitioner that “the only available alternative sentence to
death [was] life imprisonment without possibility of parole.”
Id., at 178 (O’Connor, J., concurring in judgment). Such
circumstances would be “materially indistinguishable” from
the facts of Simmons. See Williams v. Taylor, 529 U. S., at
405. It therefore would have been “contrary to” Simmons
for the Virginia Supreme Court to hold that petitioner was
not entitled to inform the jury that he would be parole ineli-
gible. See ibid. Where all that stands between a defend-
ant and parole ineligibility under state law is a purely minis-
terial act, Simmons entitles the defendant to inform the jury
of that ineligibility, either by argument or instruction, even
if he is not technically “parole ineligible” at the moment of
sentencing.
Such was not the case here, however. As the plurality
opinion explains, the entry of judgment following a criminal

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O’Connor, J., concurring in judgment
conviction in Virginia state court is not a purely ministerial
act, i. e., one that is inevitable and foreordained under state
law. The Commonwealth allows criminal defendants to file
post-trial motions following a guilty verdict, and trial courts
may set aside jury verdicts in response to such motions.
See ante, at 173–175. Thus, as a matter of Virginia law, a
guilty verdict does not inevitably lead to the entry of a judg-
ment order. Consequently, the jury verdict finding peti-
tioner guilty of the Domino’s Pizza robbery did not mean
that petitioner would necessarily be parole ineligible under
state law. Indeed, petitioner himself concedes that there
was a “possibility that the Domino’s Pizza trial judge could
set aside the verdict under Virginia Supreme Court Rule
3A:15(b).” Brief for Petitioner 37.
Petitioner nevertheless contends that the possibility that
the trial court would set aside the guilty verdict for the
Domino’s Pizza robbery was quite remote, and therefore
that the entry of judgment was extremely likely. But, as
the plurality opinion explains, Simmons does not require
courts to estimate the likelihood of future contingencies con-
cerning the defendant’s parole ineligibility. Rather, Sim-
mons entitles the defendant to inform the capital sentencing
jury that he is parole ineligible where the only alternative
sentence to death is life without the possibility of parole.
And unlike the defendant in Simmons, Ramdass was eligible
for parole under state law at the time of his sentencing.
For these reasons, I agree that petitioner is not entitled
to the issuance of a writ of habeas corpus. As our decision
in Williams v. Taylor makes clear, the standard of review
dictated by 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. III) is
narrower than that applicable on direct review. Applying
that standard here, I believe the Virginia Supreme Court’s
decision was neither contrary to, nor an unreasonable ap-
plication of, our holding in Simmons. Accordingly, I concur
in the judgment.

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182 RAMDASS v. ANGELONE
Stevens, J., dissenting
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting.
There is an acute unfairness in permitting a State to rely
on a recent conviction to establish a defendant’s future dan-
gerousness while simultaneously permitting the State to
deny that there was such a conviction when the defendant
attempts to argue that he is parole ineligible and therefore
not a future danger. Even the most miserly reading of the
opinions in Simmons v. South Carolina, 512 U. S. 154 (1994),
supports the conclusion that this petitioner was denied
“one of the hallmarks of due process in our adversary sys-
tem,” namely, the defendant’s right “to meet the State’s
case against him.” Id., at 175 (O’Connor, J., concurring in
judgment).
I
In Simmons, we held that “[w]hen the State seeks to show
the defendant’s future dangerousness . . . the defendant
should be allowed to bring his parole ineligibility to the
jury’s attention—by way of argument by defense counsel or
an instruction from the court—as a means of responding to
the State’s showing of future dangerousness.” Id., at 177
(O’Connor, J., concurring in judgment). The present case
falls squarely within our holding.
There is no question that the Commonwealth argued
Ramdass’ future dangerousness. Ante, at 161. In doing so,
it focused almost entirely on Ramdass’ extensive criminal
history, emphasizing that his most recent crime spree was
committed after his mandatory release on parole.1 Indeed,
1 The prosecution’s opening argument began by recounting Ramdass’
entire criminal history. App. 8–11. Eight of the nine witnesses the
Commonwealth called did little more than relate the details of Ram-
dass’ criminal past. Id., at 12–64. The prosecution’s closing argument
highlighted the connection between Ramdass’ crimes and his prior re-
leases from prison. Id., at 80–82. In fact, it did so on several occasions.
Id., at 9 (Ramdass “served time [for the 1988 strong arm robbery convic-
tion] and was finally paroled in May of 1992”); id., at 46–47 (Ramdass “was

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the prosecution relied upon the Domino’s Pizza robbery—the
very crime Virginia has precluded Ramdass from relying
upon to establish his parole ineligibility.2
There is also no question that Ramdass was denied the
opportunity to inform the jury of his parole ineligibility.
During the sentencing deliberations, the jury asked the fol-
lowing question: “[I]f the Defendant is given life, is there a
possibility of parole at some time before his natural death?”
App. 88. Rather than giving any kind of straightforward
answer, and rather than permitting counsel to explain peti-
tioner’s parole ineligibility, the court instructed: “[Y]ou
should impose such punishment as you feel is just under the
evidence . . . . You are not to concern yourselves with what
may happen afterwards.” Id., at 91.
Finally, it is undisputed that the absence of a clear in-
struction made a difference. The question itself demon-
strates that parole ineligibility was important to the jury,
and that the jury was confused about whether a “life” sen-
tence truly means life—or whether it means life subject to
released on mandatory parole” in 1992, shortly before his most recent
crime spree began); id., at 51b–52 (describing Ramdass’ 1992 release on
mandatory parole).
2 Id., at 57–59 (“On that next night, August 30th, you did a robbery of
the Domino’s Pizza over in Alexandria? . . . Well, if the cab driver was
shot in the head on August 30th and Domino’s Pizza was August 30th, you
did them both the same day; didn’t you?”); id., at 81 (“August 30th, 1992,
he robbed Domino’s Pizza at the point of a gun in Alexandria and he
robbed Domino’s Pizza not long after he shot that Arlington cab driver
through the head . . .”).
Of course, Simmons v. South Carolina, 512 U. S. 154 (1994), applies
when the prosecution argues future dangerousness; it does not require the
State to argue any particular past crime. My purpose in pointing out
Virginia’s reliance on the Domino’s Pizza verdict is to underscore the un-
fairness of permitting Virginia to use it, while denying Ramdass the same
use. The plurality’s repeated statement that Virginia brought up the
crime in its cross-examination rather than its case in chief, ante, at 162,
170, 171, neither means Simmons is inapplicable nor mitigates the un-
fairness here. It only signals the formalism the plurality is prepared to
endorse.

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the possibility of parole. See Simmons, 512 U. S., at 178
(O’Connor, J., concurring in judgment) (“[T]hat the jury in
this case felt compelled to ask whether parole was available
shows that the jurors did not know whether or not a life-
sentenced defendant will be released from prison”). More
critically, three jurors said that “if the [jury] knew that
[Ramdass] would have never gotten out of prison, they would
have given him life rather than death.” App. 95. Two of
them stated “that would have been the result among all
of [the jurors] beyond question, if they had had that infor-
mation.” Ibid. But “because they weren’t told or given
the answer . . . they all had a perception that he would be
paroled.” Ibid.3
After we remanded for reconsideration in light of Sim-
mons, the Virginia Supreme Court held that case did not
apply because Ramdass was not “ineligible for parole when
the jury was considering his sentence.” Ramdass v. Com-
monwealth, 248 Va. 518, 520, 450 S. E. 2d 360, 361 (1994).
The applicable Virginia statute requires three strikes for a
defendant to be parole ineligible. “At the time that the jury
was considering Ramdass’s penalty on January 30, 1993,” the
court held, Ramdass “was not ineligible for parole” because
he had only two strikes against him—the Pizza Hut robbery
and the instant capital murder. Ibid. Ramdass’ robbery of
the Domino’s Pizza did not count as his third strike, even
though the jury in that case had already found him guilty.
Technically, under state law, that did not count as a “con-
viction,” because Virginia’s definition of “conviction” is not
just a guilty verdict. Rather, a “conviction” also requires a
piece of paper signed by the judge entering the verdict into
3 Once again, Simmons’ applicability does not at all turn on whether this
kind of evidence exists. I point it out only to emphasize how real the
Simmons concerns are here. The plurality complains, in essence, that
the evidence came in the form of an uncontested proffer rather than as a
sworn affidavit. Ante, at 163. Again, neither Simmons’ applicability nor
the reality of the case is undercut by this quibble. The only thing that it
proves is the plurality’s penchant for formalism.

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the record. Id., at 520–521, 450 S. E. 2d, at 361. The trial
judge signed the entry of the judgment in the Domino’s Pizza
case 19 days after the end of the sentencing phase in Ram-
dass’ capital murder proceeding. Ante, at 160. Therefore,
the Virginia Supreme Court held that at the time “when the
jury was considering [petitioner’s] sentence” in the capital
murder case, Ramdass was “not ineligible for parole” under
state law, and thus Simmons was inapplicable.
II
The plurality begins by stating what it thinks is the rule
established in Simmons: “The parole-ineligibility instruction
is required only when, assuming the jury fixes the sentence
at life, the defendant is ineligible for parole under state law.”
Ante, at 166. The plurality also adds a proviso: The defend-
ant must be parole ineligible at the time of sentencing.4
Given that understanding, the plurality says “[m]aterial dif-
ferences exist between this case and Simmons.” Ante, at
167. But the differences to which the plurality points do not
distinguish this case from Simmons.
The first asserted distinction is that, as the Virginia Su-
preme Court stated, Ramdass was not parole ineligible
under state law at the time of sentencing. Ramdass might
4 Though the plurality does not include the proviso in its initial state-
ment of the rule in Simmons, it repeats this requirement no less than
20 times in its 20-page opinion. See ante, at 159 (“when the jury con-
sidered his case”), 161 (“at the time of the capital sentencing trial”),
163–164 (“at the time of the jury’s death penalty deliberations”), 164
(“when the jury was considering his sentence”), ibid. (“at the time of the
sentencing trial”), ibid. (“at the time of his trial”), ibid. (“at the time of
sentencing”), 165 (“at the time of the jury’s future dangerousness delibera-
tions”), 166 (“when the jury deliberated his sentence”), ibid. (“at the time
of the sentencing trial”), 167 (“when the jury considered his sentence”),
ibid. (“at the time of sentencing”), ibid. (“at the time of his sentencing
trial”), ibid. (same), 168 (“at the time of the sentencing trial”), ibid. (same),
ibid. (“at the time of his sentencing trial”), 169 (“at the time of his trial”),
171 (“at the time of his trial”), 176 (“at the time of trial”).

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have become parole ineligible at some later date, but at the
exact moment the jury was deliberating that was not yet so.
The trouble is, that is not a fact that distinguishes Ramdass’
case from Simmons’.
In Simmons, the relevant parole statute was S. C. Code
Ann. § 24–21–640 (Supp. 1993). See Simmons, 512 U. S., at
176 (O’Connor, J., concurring in judgment) (citing South
Carolina parole law); see also id., at 156 (plurality opinion)
(same).5 Under that statute, it was the South Carolina
Board of Probation, Parole, and Pardon Services that deter-
mined a defendant’s parole eligibility—and that determina-
tion would come after the sentencing phase. Then-current
South Carolina case law unambiguously stated that the eligi-
bility determination would not be made at trial, but by the
parole board.6 Moreover, the statute required the parole
board to find that the defendant’s prior convictions were not
committed “pursuant to one continuous course of conduct,”
and it was by no means certain that the board would ulti-
mately reach that conclusion. In fact, in Simmons the State
of South Carolina steadfastly maintained that Simmons was
not truly parole ineligible at the time of his sentencing
5 That statute read in part: “The board must not grant parole nor is
parole authorized, to any prisoner serving a sentence for a second or
subsequent conviction, following a separate sentencing for a prior convic-
tion, for violent crimes as defined in Section 16–1–60. Provided that
where more than one included offense shall be committed within a one-day
period or pursuant to one continuous course of conduct, such multiple of-
fenses must be treated for purposes of this section as one offense.”
6 See, e. g., State v. McKay, 300 S. C. 113, 115, 386 S. E. 2d 623, 623–624
(1989).
It is true, as the plurality points out, ante, at 167, that in Simmons
the defendant did have an entry of judgment. But, under the plurality’s
reasoning, the issue is whether the defendant is parole ineligible at the
time of sentencing, not why he is or is not ineligible. Thus, whether the
defendant is parole eligible at that time because he has no entry of judg-
ment or because the parole board has not yet met is hardly relevant. It
is a distinction, but not a material one.

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phase because the parole board’s determination had not
yet been made.7 Therefore, the fact that parole ineligibility
under state law had not been determined at the time of sen-
tencing is simply not a fact that distinguishes Simmons from
Ramdass’ case.8
7 “First and foremost, at the time of the trial, no state agency had
ever determined that Simmons was going to be serving a sentence of
life without the possibility of parole, despite the fact that he had earlier
pled guilty and been sentenced to a violent crime prior to this trial. The
importance of that distinction is that the power to make that determi-
nation did not rest with the judiciary, but was solely vested in an execu-
tive branch agency, the South Carolina Board of Probation, Parole and
Pardon Services.” Brief for Respondent in Simmons v. South Carolina,
O. T. 1993, No. 92–9059, p. 95 (emphasis added).
The plurality also complains that “a state court [need not] glean infor-
mation from the record” in Simmons. Ante, at 168. That is true, but it
is equally true that a state court cannot pretend that a fact creates a
material distinction simply because it was not expressly raised and re-
jected by this Court. Moreover, it is evident in the opinion itself that
Simmons’ parole-ineligibility status had not been definitively and legally
determined yet at the time of sentencing. See n. 8, infra.
8 The plurality contends that in Simmons “the defendant had ‘con-
clusively established’ his parole ineligibility at the time of sentencing.”
Ante, at 167 (quoting Simmons, 512 U. S., at 158 (plurality opinion)); see
also ante, at 171. What Simmons in fact said was that no one questioned
that the defendant had all the facts necessary to be found ineligible at
some future date. It does not indicate that a legal determination of the
defendant’s parole ineligibility had already been definitively made by the
parole board. This is clear in the plurality’s citation of the South Carolina
parole statute, under which a defendant’s parole status is determined by
the parole board at a later date. See supra, at 186. This is also clear
from the fact that the plurality relied upon the testimony of the parole
board’s attorneys, 512 U. S., at 158–159, demonstrating the plurality’s rec-
ognition that it was the parole board that would ultimately determine
Simmons’ parole eligibility. Furthermore, the plurality’s statement that
Simmons was “in fact ineligible,” id., at 158 (emphasis added), as opposed
to “legally” ineligible or ineligible “as a matter of law,” clearly distin-
guished between the facts as known at that time (which indicated how
Simmons’ status would, in all likelihood, ultimately be determined), and
the legal determination of status (which would be formally determined at

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Perhaps recognizing that problem, the plurality shifts
ground. It is not, the plurality says, “only” whether parole
ineligibility under state law has been determined “at the
time of sentencing,” but whether there is “no possibility” of
parole eligibility at that time. Ante, at 169. In other
words, the plurality says that Simmons applies when there
is “conclusive proof ” at the time of sentencing that the de-
fendant will (in the future) “inevitabl[y]” be found parole in-
eligible. Ante, at 170, 173–174. In Ramdass’ case, the plu-
rality continues, he would not inevitably be parole ineligible,
because, under Virginia law, his Domino’s Pizza robbery ver-
dict could have been set aside under Virginia Supreme Court
Rule 3A:15(b) (1999). That Rule permits a trial court to set
aside a guilty verdict up to 21 days after final judgment has
been entered. Ante, at 174–175.9
But again, this is not a fact that distinguishes Ramdass’
case from Simmons’. Like Virginia, South Carolina permit-
ted (and still permits) the court to entertain post-trial mo-
tions to set aside a verdict and such a motion could have
a later date). Finally, if Simmons’ parole ineligibility had been legally
and conclusively resolved by the time of his trial, there would have been
no need for the plurality to discuss (and reject) possibilities that might
have undermined Simmons’ eventual finding of parole ineligibility. See
infra, at 201–203.
The Simmons plurality did say that “an instruction informing the jury
that petitioner is ineligible for parole is legally accurate.” 512 U. S., at
166; ante, at 166–167. But in the very next sentence the plurality wrote:
“Certainly, such an instruction is more accurate than no instruction at
all.” 512 U. S., at 166 (emphasis added). This made it clear that “accu-
racy,” in the sense used there, is a relative term, not an absolute conclusive
determination of legal status.
9 At the time of Ramdass’ trial, Rule 3A:15(b) read:
“(b) Motion to Set Aside Verdict.—If the jury returns a verdict of
guilty, the court may, on motion of the accused made not later than 21
days after entry of a final order, set aside the verdict for error committed
during the trial or if the evidence is insufficient as a matter of law to
sustain a conviction.”

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been filed in Simmons’ case.10 If the availability of such
a post-trial procedure makes Ramdass’ parole ineligibility
less than inevitable, the same must also have been true for
Simmons.11 Accordingly, the mere availability of such a
procedure is not a fact that distinguishes the two cases.
In the end, though, the plurality does not really rest upon
inevitability at all, nor upon the alleged lack of inevitability
represented by the post-trial motion procedure. Instead,
the plurality relies upon the fact that at the time of Ramdass’
sentencing phase, although the jury had rendered a guilty
verdict in the Domino’s Pizza robbery case, the trial judge
had not yet entered judgment on the verdict. Ante, at 160,
167, 173–174, 176. That entry of judgment would come 19
days later. Ante, at 160. The distinction is important, the
plurality says, because “[a] judgment, not a verdict, is the
usual measure for finality in the trial court,” ante, at 176,
whereas a verdict without a judgment is “uncertain,” ibid.
The plurality is, of course, correct that the missing entry of
judgment is a circumstance that was not present in Simmons.
10 South Carolina Rule of Criminal Procedure 29(b) (1999) reads, in rele-
vant part: “A motion for a new trial based on after-discovered evidence
must be made within a reasonable period of time after the discovery of
the evidence.”
11 It is true, of course, that a motion for a new trial under South Caro-
lina’s rule must be predicated on the discovery of new evidence, but that
does not meaningfully distinguish its rule from Virginia’s rule, under
which a verdict can be set aside only for trial error or insufficient evidence.
The plurality says that because Simmons pleaded guilty to his prior
crime, he was foreclosed from filing a motion under South Carolina’s rule.
Ante, at 167. For this proposition, the plurality cites Whetsell v. State,
276 S. C. 295, 277 S. E. 2d 891 (1981). This is just flat wrong. See John-
son v. Catoe, 336 S. C. 354, 358–359, 520 S. E. 2d 617, 619 (1999) (“Whetsell
does not stand for the proposition that a defendant who admits his guilt
is barred from collaterally attacking his conviction. Whetsell stands only
for the narrow proposition that a [postconviction relief] applicant who has
pled guilty on advice of counsel cannot satisfy the prejudice prong on col-
lateral attack if he states he would have pled guilty in any event”).

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But the plurality’s entirely unsupported assertion that an
entry of judgment is more “certain” than a verdict is just
flat wrong.
The sole basis for the plurality’s conclusion that the Domi-
no’s Pizza verdict is uncertain is the possibility that it could
be set aside under Rule 3A:15(b). But under that Rule, a
guilty verdict may be set aside even after judgment has been
entered. See n. 9, supra. The plurality has cited not a
single case suggesting that the standard for setting aside a
verdict under Rule 3A:15(b) varies depending on whether
or not judgment has been entered. Accordingly, a verdict
that is susceptible to being set aside under Rule 3A:15(b) is
no more or less certain simply because judgment has been
entered on that verdict; whatever the degree of uncertainty
is, it is identical in both cases. In short, whether judgment
has been entered on the verdict has absolutely no bearing on
the verdict’s “uncertainty.”
The plurality cites 11 Virginia cases to support its argu-
ment that Rule 3A:15(b) puts a verdict on shaky ground.
Ante, at 174–175. The authorities are less than over-
whelming. Only 2 of those 11 cases actually mention Rule
3A:15(b),12 and one of those does so in dicta in a footnote
in the unpublished decision of an intermediate state court.13
Four others make passing reference to some sort of post-
trial motion that was denied, but do so only in the context
of reciting the procedural history of the case under review.14
12 Dowell v. Commonwealth, 12 Va. App. 1145, 408 S. E. 2d 263 (1991);
Davis v. Commonwealth, No. 2960–98–2, 2000 WL 135148 (Va. App., Feb.
8, 2000) (unpublished).
13 See id., at *4, n. 1.
14 Floyd v. Commonwealth, 219 Va. 575, 577, 249 S. E. 2d 171, 172 (1978)
(“Overruling Floyd’s motions to set aside the verdicts . . . , the trial court
entered judgments on the verdicts”); Johnson v. Commonwealth, 20 Va.
App. 547, 552, 458 S. E. 2d 599, 601 (1995) (“At Johnson’s sentencing hear-
ing, defense counsel made a motion to set aside the verdict . . . . The trial
judge denied the motion”); Walker v. Commonwealth, 4 Va. App. 286, 291,
356 S. E. 2d 853, 856 (1987) (“After the jury was discharged, defendant

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Another case also makes passing reference to the denial of
a post-trial motion, but it is clear from the fact that the
motion was predicated on “new evidence” (which is not a
basis for a Rule 3A:15(b) motion, see n. 9, supra) and was
made four months after the verdict that the motion was
almost certainly not based on Rule 3A:15(b).15 Ultimately,
the plurality points to only three cases to demonstrate that
“a jury verdict [is] uncertain and unreliable until judgment
is entered.” Ante, at 175 (citing Dowell v. Commonwealth,
12 Va. App. 1145, 1149, 408 S. E. 2d 263, 265 (1991) (men-
tioning Rule 3A:15(b)); Smith v. Commonwealth, 134 Va.
589, 113 S. E. 707 (1922); Blair v. Commonwealth, 66 Va. 850
(1874)). What these cases hold, however, is (1) that a ver-
dict without an entry of judgment may not be used for pur-
poses of impeaching a witness’ credibility; (2) the same may
not be used for purposes of a statute permitting the re-
moval from public office of any person “convicted of an act . . .
involving moral turpitude”; but (3) the Governor can pardon
a prisoner after a verdict and before entry of judgment.
Not one of them actually involves a Rule 3A:15(b) motion,
nor remotely says that a verdict itself is “unreliable.” 16 The
moved the court to set aside the verdict; the court denied the motion”);
Carter v. Commonwealth, 10 Va. App. 507, 509, 393 S. E. 2d 639, 640 (1990)
(“Carter . . . appeals from judgments of the Circuit Court of Loudoun
County . . . which . . . denied his post-trial motions for a new trial”).
15 Payne v. Commonwealth, 220 Va. 601, 602–603, 260 S. E. 2d 247, 248
(1979).
16 Dowell does say that a verdict without a judgment is not reliable “for
impeachment purposes,” 12 Va. App., at 1149, 408 S. E. 2d, at 265, but this
is a far cry from saying the verdict is itself unreliable. What the three
cases actually address is the question whether a verdict is a “conviction”
under state law; they say that it depends on the context, answering in the
negative in two cases, and in the affirmative in a third.
The plurality also cites two intermediate state-court cases making pass-
ing reference to a trial court’s granting of a post-trial motion, though nei-
ther case mentions Rule 3A:15(b). See Gorham v. Commonwealth, 15 Va.
App. 673, 426 S. E. 2d 493 (1993); Cullen v. Commonwealth, 13 Va. App.
182, 409 S. E. 2d 487 (1991). But a mere two cases among all the criminal

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192 RAMDASS v. ANGELONE
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plurality scrounges to find case law support, but the result
barely registers on the radar screen.
Furthermore, the plurality thinks that there is “no author-
ity” for the proposition that entry of judgment is generally
considered to be a “ministerial” matter. Ante, at 174. In a
related context, however, the Virginia Supreme Court has
observed:
“The rendition of a judgment is to be distinguished from
its entry in the records. The rendition of a judgment is
the judicial act of the court, whereas the entry of a judg-
ment by the clerk on the records of the court is a min-
isterial, and not a judicial, act. . . . The entry or recor-
dation of such an instrument in an order book is the
ministerial act of the clerk and does not constitute an
integral part of the judgment.” Rollins v. Bazile, 205
Va. 613, 617, 139 S. E. 2d 114, 117 (1964) (citations and
internal quotation marks omitted).
In any event, there is a more critical point to be made
about the plurality’s entry-of-judgment distinction. In rely-
ing on that distinction, the plurality is necessarily abandon-
ing the very understanding of Simmons that it purports to
be following. As explained above, to the extent that the
availability of Rule 3A:15(b) motions undermines the in-
evitability of a defendant’s prior verdicts (and therefore his
parole ineligibility) under state law, it does so whether or
not judgment has been entered on the verdict. So why is
it that Simmons does not apply when there is no entry of
judgment?
The answer simply cannot be that, under state law, and at
the time of sentencing, the defendant will not inevitably be
cases in Virginia surely demonstrates that setting aside a verdict by post-
trial motion is a rarity; if those two instances make the verdict uncertain,
then one might as well cite the solitary case in which the Governor granted
a pardon after the verdict but before the entry of judgment. See Blair
v. Commonwealth, 66 Va. 850 (1874).

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found parole ineligible: the inevitability of the verdict is
undermined equally with or without the judgment; and the
defendant is eligible for parole under state law if the ver-
dict is set aside, regardless of whether it is set aside before
or after judgment is entered. In fact, though, the plurality
really makes no attempt to explain the entry-of-judgment
distinction in terms of either the at-the-time-of-sentencing-
under-state-law rule, or in terms of the inevitable-under-
state-law rule. Rather, the significance of the entry of
judgment rests upon the assertion that a judgment is more
certain than a jury verdict. The entry-of-judgment line,
then, is really about relative degrees of certainty regarding
parole ineligibility.17
If the question is not one in which state law controls (by
looking to the defendant’s conclusively determined status
either at the time of sentencing or inevitably thereafter),
the question of Simmons’ applicability must be an issue of
federal due process law. That is a proposition with which
I agree entirely; indeed, Simmons itself makes that perfectly
clear, as I discuss below. Before examining what Simmons’
17 Though the plurality insists that judgment “is the usual measure for
finality,” ante, at 176, its own opinion reveals that it does not mean “final-
ity” in any absolute sense. Rather, it concedes that while a “jury verdict
[is] uncertain,” ante, at 175, “even a judgment” is “uncertain” too, because
of “the availability of postjudgment relief,” ante, at 176. What it means,
then—though it is not particularly candid about it—is that a judgment is
more certain than a verdict. Put differently, the plurality thinks a judg-
ment is more enduring, in that there is a greater probability that a verdict
will survive a motion to set it aside if there has already been an entry
of judgment.
It is clear that the significance of the entry of judgment for the plurality
must be based on that belief. The significance cannot be that without the
entry of judgment the defendant is not ineligible for parole at the exact
moment of sentencing; as explained above, that fact is not dispositive.
See supra, at 185–187. Nor can its significance be that without the entry
of judgment, his parole status is not inevitable. As also explained above,
the entry of judgment has no significance insofar as inevitability is con-
cerned. See supra, at 188–192 and this page.

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194 RAMDASS v. ANGELONE
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due process requirements entail, however, it is important to
understand the rationale behind Simmons: the need for capi-
tal sentencing juries to have accurate information about the
defendant in the particular area of parole eligibility.
III
We stated in Gregg v. Georgia, 428 U. S. 153 (1976):
“If an experienced trial judge, who daily faces the diffi-
cult task of imposing sentences, has a vital need for ac-
curate information about a defendant and the crime he
committed in order to be able to impose a rational sen-
tence in the typical criminal case, then accurate sentenc-
ing information is an indispensable prerequisite to a rea-
soned determination of whether a defendant shall live
or die by a jury of people who may never before have
made a sentencing decision.” Id., at 190 ( joint opinion
of Stewart, Powell, and Stevens, JJ.).
This imperative is all the more critical when the jury must
make a determination as to future dangerousness. “[A]ny
sentencing authority must predict a convicted person’s prob-
able future conduct when it engages in the process of de-
termining what sentence to impose. . . . What is essential is
that the jury have before it all possible relevant information
about the individual defendant whose fate it must deter-
mine.” Jurek v. Texas, 428 U. S. 262, 274–276 (1976) ( joint
opinion of Stewart, Powell, and Stevens, JJ.). When it
comes to issues such as future dangerousness and the possi-
bility of parole, it is therefore vitally important that “the
jury [have] accurate information of which both the defend-
ant and his counsel are aware,” including “an accurate state-
ment of a potential sentencing alternative.” California v.
Ramos, 463 U. S. 992, 1004, 1009 (1983).
This is not to say, of course, that the Constitution compels
the States to tell the jury every single piece of information
that may be relevant to its deliberations. See, e. g., id., at

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1010–1012. Indeed, in California v. Ramos, we held it ordi-
narily proper to “defe[r] to the State’s choice of substantive
factors relevant to the penalty determination.” Id., at 1001.
Notwithstanding the broad discretion recognized in Ramos,
the latitude to which the States are entitled is not un-
bounded; at times, it must give way to the demands of due
process.
One such due process requirement is that a defendant
must have an opportunity to rebut the State’s case against
him. Simmons, 512 U. S., at 175 (O’Connor, J., concurring
in judgment). And “[w]hen the State seeks to show the de-
fendant’s future dangerousness, . . . the fact that he will
never be released from prison will often be the only way that
a violent criminal can successfully rebut the State’s case.”
Id., at 177 (O’Connor, J., concurring in judgment). Accord-
ingly, “despite our general deference to state decisions re-
garding what the jury should be told about sentencing, . . .
due process requires that the defendant be allowed [to bring
his parole ineligibility to the jury’s attention] in cases in
which the only available alternative sentence to death is life
imprisonment without possibility of parole and the prosecu-
tion argues that the defendant will pose a threat to society
in the future.” Ibid.
The rationale for the Simmons exception to the general
rule of Ramos is quite apparent. In Ramos, the defendant
claimed that if the State were permitted to argue that the
Governor could commute a sentence of life without parole,
then due process entitled him to tell the jury that the Gover-
nor could commute a death sentence as well. We rejected
that argument, however, holding that the information the de-
fendant sought to introduce “would not ‘balance’ the impact”
of telling the jury that the Governor could commute a sen-
tence of life without parole. 463 U. S., at 1011. Nor would
it make the jury “any less inclined to vote for the death pen-
alty upon learning” that information. Ibid. Nor, finally,
were we persuaded that it would “impermissibly impe[l] the

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196 RAMDASS v. ANGELONE
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jury toward voting for the death sentence” if the jury were
told that a life without parole sentence could be commuted,
but were not told that a death penalty could be commuted
as well. Id., at 1012.
Each of these factors, however, points in precisely the
opposite direction when it comes to information about a de-
fendant’s parole ineligibility. If the State argues that the
defendant will be a future danger to society, it quite plainly
rebuts that argument to point out that the defendant—be-
cause of his parole ineligibility—will never be a part of
society again. Simmons, 512 U. S., at 177 (O’Connor, J.,
concurring in judgment) (“[T]he fact that he will never be
released from prison will often . . . rebut the State’s case”).
And unlike Ramos, if the jury is informed of a defendant’s
parole ineligibility, it is “less inclined to vote for the death
penalty upon learning” that fact. Conversely, permitting
the State to argue the defendant’s future dangerousness,
while simultaneously precluding the defendant from arguing
his parole ineligibility, does tend to “impe[l] the jury toward
voting for the death sentence.” Despite the plurality’s un-
supported remark that “[e]vidence of potential parole in-
eligibility is of uncertain materiality,” ante, at 170, all of the
available data demonstrate to the contrary.
How long a defendant will remain in jail is a critical factor
for juries. One study, for example, indicates that 79% of
Virginia residents consider the number of years that a de-
fendant might actually serve before being paroled to be an
“ ‘important consideration when choosing between life im-
prisonment and the death penalty.’ ” 18 A similar study re-
veals that 76.5% of potential jurors think it is “extremely
important” or “very important” to know that information
when deciding between life imprisonment and the death pen-
18 See Note, The Meaning of “Life” for Virginia Jurors and Its Effect on
Reliability in Capital Sentencing, 75 Va. L. Rev. 1605, 1624, and n. 102
(1989) (citing study by National Legal Research Group).

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alty.19 Likewise, two-thirds of the respondents in another
survey stated that they would be more likely to give a life
sentence instead of death if they knew the defendant had to
serve at least 25 years in prison before being parole eligi-
ble. 20 General public support for the death penalty also
plummets when the survey subjects are given the alterna-
tive of life without parole.21 Indeed, parole ineligibility in-
formation is so important that 62.3% of potential Virginia
jurors would actually disregard a judge’s instructions not to
consider parole eligibility when determining the defendant’s
sentence.22
At the same time, the recent development of parole ineligi-
bility statutes results in confusion and misperception, such
that “common sense tells us that many jurors might not
know whether a life sentence carries with it the possibility
19 Hughes, Informing South Carolina Capital Juries About Parole, 44
S. C. L. Rev. 383, 409–410 (1993) (citing 1991 study by Univ. of South Caro-
lina’s Institute for Public Affairs); see also Simmons, 512 U. S., at 159
(plurality opinion) (discussing this study).
20 Paduano & Smith, Deathly Errors: Juror Misperceptions Concerning
Parole in the Imposition of the Death Penalty, 18 Colum. Human Rights
L. Rev. 211, 223 (1987).
21 See, e. g., Rising Doubts on Death Penalty, USA Today, Dec. 22, 1999,
p. 17A (nationwide 1999 Gallup Poll finds 71% support death penalty; 56%
support death penalty when life without parole is offered as an option);
Finn, Given Choice, Va. Juries Vote for Life, Washington Post, Feb. 3,
1997, pp. A1, A6 (“According to a poll conducted for the Death Penalty
Information Center, which opposes capital punishment, support for the
death penalty nationwide falls from 77 percent to 41 percent if the alter-
native is life without parole accompanied by restitution”); Heyser, Death
Penalty on the Rise in Virginia, Roanoke Times, Aug. 31, 1998, p. C3 (re-
porting study by Virginia Tech’s Center for Survey Research, finding that
79% of Virginians “strongly” or “somewhat” support the death penalty, a
figure that drops to 57% when respondents are given the alternative of
life without parole for 25 years plus restitution); Armstrong & Mills, Death
Penalty Support Erodes, Many Back Life Term as an Alternative, Chicago
Tribune, Mar. 7, 2000, p. 1 (58% of Illinois registered voters support death
penalty; only 43% favor death when given option of life without parole).
22 See Note, 75 Va. L. Rev., at 1624–1625, and n. 103.

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198 RAMDASS v. ANGELONE
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of parole.” Simmons, 512 U. S., at 177–178 (O’Connor, J.,
concurring in judgment). The statistical data bear this out.
One study of potential Virginia jurors asked: “ ‘If a person
is sentenced to life imprisonment for intentional murder
during an armed robbery, how many years on the average
do you think that the person would actually serve before
being released on parole?’ ” The most frequent response
was 10 years.23 Another potential-juror survey put the
average response at just over eight years.24 And more
than 70% of potential jurors think that a person sentenced
to life in prison for murder can be released at some point in
the future.25
Given this data, it is not surprising that one study con-
cluded: “[J]urors assessing dangerousness attach great
weight to the defendant’s expected sentence if a death sen-
tence is not imposed. Most importantly, jurors who believe
the alternative to death is a relatively short time in prison
tend to sentence to death. Jurors who believe the alterna-
tive treatment is longer tend to sentence to life.” 26 Con-
sequently, every reason why the Governor’s commutation
power at issue in Ramos was not required to be put be-
fore the jury leads to precisely the opposite conclusion when
it comes to the issue of parole ineligibility. That is exactly
why Simmons is an exception to the normally operative rule
of deference established in Ramos.27
The plurality—focusing exclusively on one of the many
sources cited—criticizes at length (ante, at 172–173) these
“so-called scientific conclusions” that merely confirm what
23 See id., at 1624, and n. 101.
24 See Paduano & Smith, 18 Colum. Human Rights L. Rev., at 223, n. 34.
25 See Hughes, 44 S. C. L. Rev., at 408; see also Finn, Washington Post,
at A6 (“[O]nly 4 percent of Americans believe that convicted murderers
will spend the rest of their days in prison”).
26 See Eisenberg & Wells, Deadly Confusion: Juror Instructions in Capi-
tal Cases, 79 Cornell L. Rev. 1, 7 (1993).
27 See Simmons, 512 U. S., at 159, 170, n. 9 (plurality opinion) (discussing
above data).

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every sentencing judge surely knows—that how soon the de-
fendant may actually be released from prison is highly rele-
vant to the sentencing decision. The plurality’s criticism yet
again underscores the formalistic character of its analysis of
the life-or-death issue presented by this case. In exercising
the judicial function, there are times when judgment is far
more important than technical symmetry.28
IV
The Virginia Supreme Court held that whether Simmons
applies is a question whose answer is entirely controlled by
the operation of state law. See supra, at 184–185. This
understanding was adopted by the plurality as well, at least
as it originally stated the holding of Simmons. See supra,
at 185. But as explained above, the Virginia court’s view,
as well as the plurality’s original stance, simply cannot be
reconciled with Simmons itself. That might explain why
the plurality ultimately abandons that view, instead relying
28 As for the specific criticisms, the plurality first complains that such
surveys are inadmissible as evidence. The question, though, is not
whether the statistical studies are admissible evidence, but whether they
are relevant facts assisting in our determination of the proper scope of the
Simmons due process right. Surely they are. In any event, Ramdass
did raise such studies at his sentencing hearing. See App. 95–96. Vir-
ginia had its chance to object, but opted not to do so. It is far too late in
the day to complain about it now. (Simmons, incidentally, also introduced
similar evidence in his trial without objection. See 512 U. S., at 159
(plurality opinion).)
Next, the plurality says that one of the studies I cited focused only on
Georgia jurors, as if Georgians have some unique preference for life with-
out parole. In any event, the studies focusing on Virginia jurors yield the
same results. See nn. 18, 21, supra. Finally, the plurality questions the
objectivity of one particular study. Even if the plurality were justified in
that criticism, it surely has no basis for questioning the many other sources
cited. See n. 19, supra (Univ. of South Carolina’s Institute for Public Af-
fairs), n. 21 (Gallup Poll and Virginia Tech’s Center for Survey Research),
n. 26 (study by Associate Professor of Statistics, Dept. of Economic and
Social Statistics, Cornell Univ.).

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on an assessment of how probable it is that the defendant
will be found parole ineligible—or, as the plurality might put
it, what is “more certain” under state law.
The plurality is correct to reject the Virginia Supreme
Court’s holding that state law entirely controls the appli-
cability of Simmons. Simmons announced a rule of due
process, not state law. 512 U. S., at 156 (plurality opinion);
id., at 177 (O’Connor, J., concurring in judgment). This is
not to say that the federal due process right in Simmons
does not make reference to state law, for surely it does; the
very reason why Simmons is an exception to Ramos is be-
cause of the consequences of parole ineligibility under state
law. But that is not the same thing as saying that the pre-
cise, technical operation of state law entirely controls its
applicability.
Simmons itself makes this perfectly clear. In that case
South Carolina argued that “because future exigencies such
as legislative reform, commutation, clemency, and escape
might allow [Simmons] to be released into society, [Simmons]
was not entitled to inform the jury that he is parole ineligi-
ble.” 512 U. S., at 166, and n. 6 (plurality opinion). Indeed,
as noted earlier, it argued that Simmons was not, technically,
parole ineligible at the time of sentencing because the state
parole board had not yet made its determination. See
supra, at 186–187.
Yet the plurality opinion rejected outright the argument
that “hypothetical future developments” control the issue,
finding that South Carolina’s argument about state law, while
“technically . . . true,” and “legally accurate,” had “little
force.” Simmons, 512 U. S., at 166, and n. 6.29 In other
words, the due process standard of Simmons was not con-
29 While Justice O’Connor’s concurring opinion did not make direct
reference to those hypothetical possibilities, South Carolina’s brief and the
plurality’s opinion put the issue squarely before the Court. If those hypo-
theticals had made a difference, the outcome of the case for the concurring
opinion would have been precisely the opposite of what it was.

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trolled entirely by the technical minutiae of state law, even
though it looked at state law for determining when the right
to rebut the State’s argument was triggered.
It makes perfect sense for Simmons’ due process right to
make reference to, yet not be wholly controlled by, state law.
On the one hand, Simmons is a limited exception to Ramos,
and as such it is confined to where the defendant will be
parole ineligible—hence the reference to state law. On the
other hand, Simmons is a constitutional requirement im-
posed on the States. If its applicability turned entirely on
a defendant’s technical status under state law at the time of
sentencing, the constitutional requirement would be easily
evaded by the artful crafting of a state statute. For exam-
ple, if Virginia can define “conviction” to require an entry
of judgment, it could just as easily define “conviction” to
require that all final appeals be exhausted, or that all state
and federal habeas options be foreclosed. And by delaying
when the defendant’s convictions count as strikes for parole
ineligibility purposes until some point in time well after the
capital murder sentencing phase, the State could convert the
Simmons requirement into an opt-in constitutional rule.30
Simmons’ applicability is therefore a question of federal
law, and that case makes clear that the federal standard
essentially disregards future hypothetical possibilities even
if they might make the defendant parole eligible at some
30 This is true even if one accepts the premise that Simmons requires
us to presume that the most recent conviction will ultimately count as a
strike regardless of what could happen under state law after the sen-
tencing hearing. (The Virginia Supreme Court apparently adopted that
view, which explains why that court counted the capital murder verdict
as a strike at the time of the sentencing hearing, even though judgment
had not yet been entered on the verdict. See supra, at 184.) Even ac-
cepting that premise, delaying the determination of parole ineligibility sta-
tus until after the sentencing hearing would still mean that the defendant’s
other prior convictions would not count as strikes until well after the capi-
tal murder sentencing phase.

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point.31 The question in this case, then, boils down to
whether the plurality’s line between entry of judgment and
a verdict is a demarcation of Simmons’ applicability that is
(1) consistent with Simmons; (2) a realistic and accurate as-
sessment of the probabilities; and (3) a workable, clear rule.
I believe the plurality fails on each score.
It is important to emphasize the precise basis for the un-
certainty the plurality perceives. The plurality limits the
relevant uncertainty to things known before the time of sen-
tencing. Events developing the day after sentencing, which
might lend uncertainty to a defendant’s eventual parole in-
eligibility do not make Simmons inapplicable, the plurality
says. Ante, at 176. What I understand the plurality to be
concerned about is whether the facts, as known at or prior
to sentencing, cast any doubt on whether, after sentencing,
the defendant will become parole ineligible. Even if nothing
definitive has happened yet by the time of sentencing, the
facts as known at that time might well give rise to uncer-
tainty as to the defendant’s parole ineligibility.
The question, then, is what were the facts as known at
the time of Ramdass’ sentencing that might cast doubt on
whether he would be found parole ineligible after sentencing.
The facts to which the plurality points are, first, that judg-
ment had not yet been entered on the verdict, and second,
that the verdict could have been set aside if Ramdass had
31 The plurality’s claim, ante, at 169, that Ramdass seeks an extension of
Simmons is therefore unfounded. And its criticism that “[p]etitioner’s
proposed rule would require courts to evaluate the probability of future
events” ignores the fact that Simmons itself did the very same thing.
Ante, at 169. The irony of that comment, moreover, is that it criticizes
the rule for requiring an assessment of the future on the ground that such
an inquiry is inherently speculative. Yet speculation about the future is
precisely what is required when the jury is asked to assess a defendant’s
future dangerousness. The speculation, however, becomes reasoned pre-
diction rather than arbitrary guesswork only when the jury is permitted
to learn of the defendant’s future parole status. See supra, at 194–199.
Unfortunately, that was not the case here.

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filed a motion to set aside the verdict under Rule 3A:15(b)
and the trial court had found that motion meritorious. But
no motion to set aside the verdict had been filed or was pend-
ing; no legal basis for granting such a motion had (or has)
ever been identified; and there was not the slightest in-
dication from the Domino’s Pizza robbery trial court that
such a motion would have been found meritorious if it had
been filed. In short, the plurality finds constitutionally sig-
nificant uncertainty in the hypothetical possibility that a
motion, if it had been filed, might have identified a trial
error and the court possibly could have found the claim meri-
torious. The mere availability of a procedure for setting
aside a verdict that is necessary for the defendant’s parole
ineligibility is enough, the plurality says, to make Simmons
inapplicable.
Frankly, I do not see how Simmons can be found inappli-
cable on the basis of such a “hypothetical future develop-
men[t].” 512 U. S., at 166 (plurality opinion). The plurality
offers no evidence whatsoever that this possibility—an “if
only” wrapped in a “might have” inside of a “possibly so”—
is at all more likely to occur than the “hypothetical future
developments” that Simmons itself refused to countenance.
Why is that possibility of setting aside the verdict any more
likely than the fanciful scenarios dismissed in Simmons?
Why is the certainty diminished merely because the trial
judge has not yet entered judgment, when that fact has no
bearing on whether a Rule 3A:15(b) motion will be granted?
The plurality never tells us, for it simply declares, without
support, elaboration, or explanation, that a verdict is more
uncertain than a judgment is. See supra, at 192–193, and
n. 17. The only reason it suggests for why the verdict here
was uncertain is rather remarkable—that Ramdass himself
said so. That is, the plurality relies upon the fact that a
convicted murderer with minimal education and a history of
drug experimentation including PCP and cocaine, App. 49,
said “I don’t know” when asked if he could ever be released

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204 RAMDASS v. ANGELONE
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from prison. Ante, at 177. This evidence is thinner than
gossamer.32
What’s more, the plurality’s assessment of certainties is
internally inconsistent. As explained earlier, the standard
for setting aside a verdict post-trial is the same regardless
of whether judgment has been entered. Accordingly, if the
verdict was uncertain in the Domino’s Pizza case, that was
also true for the Pizza Hut conviction. At the time of the
sentencing hearing in the capital murder case, the deadline
for filing a motion under the Rule had not expired for either
the Domino’s Pizza verdict or the Pizza Hut conviction.
(The time for filing a motion for the Pizza Hut conviction
expired on February 12, 21 days after judgment had been
entered on that verdict. This was 13 days after the sentenc-
ing phase in the capital murder case ended.) Because there
was a possibility that the Pizza Hut conviction could have
been set aside before judgment was entered on the Domino’s
Pizza verdict (and therefore before Ramdass technically be-
came parole ineligible), the certainty of the verdict was just
as much in doubt for that conviction. The plurality, how-
ever, finds the Domino’s Pizza verdict uncertain yet casts no
doubt on the Pizza Hut conviction. How can this possibly
be consistent? The plurality never says.
Finally, the plurality’s approach is entirely boundless. If
the kind of “hypothetical future developmen[t]” at issue
here is sufficient to make Simmons inapplicable, would it
32 The plurality also attempts to distinguish the hypotheticals in Sim-
mons from those in Ramdass’ case by pointing out that the former hypo-
theticals, if they happened, would do so after sentencing. Ante, at 168–
169. But the entire point of the hypotheticals is not whether they could
occur before sentencing, but whether they could occur before the defend-
ant was technically declared parole ineligible. In Simmons, that was true
right up until the parole board made its determination. Simply because
the nuances of state law may create an opportunity for undermining parole
ineligibility earlier on does not make the possibility any less hypothetical
or undermine the ineligibility any less; the same principle is at work
either way.

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be sufficient if, rather than having the possibility of a recent
conviction being set aside by post-trial motion, an old prior
conviction could be set aside on appeal before judgment had
been entered on the Domino’s Pizza verdict? Or under a
State’s postconviction habeas procedure? More to the point,
if the mere availability of a post-trial procedure to set aside
the verdict is enough, is the same true as well for the mere
availability of an appeal or state habeas review, so long as
the time had not expired for either? Old convictions neces-
sary for a defendant’s parole ineligibility can be set aside
under these procedures as well. And under each procedure
those prior convictions could potentially be set aside at the
crucial moment.33
It is easy, in this case, to be distracted by the lack of an
entry of judgment and the recentness of Ramdass’ prior con-
victions. As the above examples demonstrate, however,
these facts tend to detract from, rather than elucidate, the
relevant issue. If Simmons is inapplicable because at least
one of the defendant’s prior convictions could be set aside
before sentencing (or before the third strike becomes final,
or before whatever time the plurality might think is the
crucial moment), then it should not matter, under that rea-
soning, whether it is set aside by post-trial motion, on appeal,
or through state (or federal) postconviction relief. What’s
more, the plurality’s reasoning would hold true so long as
these procedures are simply available. Accordingly, it
would not matter whether a defendant’s prior strikes were
a day old, a year old, or 100 years old. Nor would it matter
that judgment had been entered on those prior convictions.
So long as such procedures for setting aside old convictions
33 It is true that these old convictions—like the Pizza Hut conviction—
have had an entry of judgment and thus would count as strikes. But
under state law, a defendant must have three strikes at the same time to
be parole ineligible. If a strike were set aside before the defendant has
all three, he is just as much parole eligible as he would be if judgment
had never been entered on the verdict.

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exist and remain technically available prior to a defendant’s
capital murder sentencing phase, the defendant’s eventual
parole ineligibility is just as uncertain at the crucial moment.
The plurality, however, never addresses any of this, but
surely its holding today is an invitation to such possibilities.
Indeed, if these possibilities make Simmons inapplicable,
does this not invite the very same circumvention of Sim-
mons that would result if the rule turned entirely on state
law (see supra, at 201), by allowing a State to render all
prior convictions uncertain simply by holding open some
theoretical possibility for postconviction relief at all times?
Given that appeals and various forms of postconviction re-
lief undermine the certainty of a verdict or a “conviction”
every bit as much as does a procedure like Rule 3A:15(b)—
indeed, probably more so—the plurality’s reasoning either
draws an arbitrary line between these types of procedures,
or it accepts that all of these possibilities make Simmons
inapplicable, in which case that due process right is eviscer-
ated entirely.34 It is abundantly clear that the proclaimed
“workable” rule the plurality claims to be following is an
illusion. Ante, at 166.
No such arbitrary line-drawing is at all necessary to decide
this case. It is entirely sufficient simply to hold that Vir-
ginia has offered not one reason for doubting that judgment
would be entered on the Domino’s Pizza robbery verdict or
for doubting Ramdass’ eventual parole ineligibility. Cer-
tainly it has offered no reason for thinking that the possibil-
34 The plurality says “[t]he Commonwealth is entitled to some deference,
in the context of its own parole laws, in determining the best reference
point for making the ineligibility determination.” Ante, at 170; see also
ante, at 176 (“States may take different approaches and we see no support
for a rule that would require a State to declare a conviction final for pur-
poses of a three-strikes statute once a verdict has been rendered”). But
the questions here are whether the federal due process standard must
abide by every state-law distinction, and if not, is abiding by the entry-of-
judgment distinction arbitrary, in light of the fact that that distinction has
absolutely no bearing on whether the verdict will be set aside?

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ity of setting aside the Domino’s Pizza robbery verdict is
at all more likely than the hypothetical future developments
rejected in Simmons. This case thus falls squarely within
Simmons.
Though it is unnecessary to decide it here, a guilty verdict
is the proper line. A guilty verdict against the defendant is
a natural breaking point in the uncertainties inherent in the
trial process. Before that time, the burden is on the State
to prove the accused’s guilt beyond a reasonable doubt. A
guilty verdict, however, means that the defendant’s pre-
sumption of innocence—with all of its attendant trial safe-
guards—has been overcome. The verdict resolves the cen-
tral question of the general issue of guilt. It marks the most
significant point of the adversary proceeding, and reflects a
fundamental shift in the probabilities regarding the defend-
ant’s fate. For that reason, it is the proper point at which a
line separating the hypothetical from the probable should be
drawn. Moreover, because the State itself can use the de-
fendant’s prior crimes to argue future dangerousness after a
jury has rendered a verdict—as Virginia did here, see supra,
at 182–183, and n. 2—that is also the point at which the de-
fendant’s Simmons right should attach.
V
In Williams v. Taylor, 529 U. S. 362, 405 (2000) (opinion
of O’Connor, J.), we stated the standard for granting habeas
relief under 28 U. S. C. § 2254(d)(1): “A state-court decision
will certainly be contrary to our clearly established prece-
dent if the state court applies a rule that contradicts the gov-
erning law set forth in our cases.” As I have explained, the
Virginia Supreme Court applied Simmons as if (a) its applica-
bility was controlled entirely by state law and (b) the defend-
ant’s parole ineligibility is determined at the exact moment
when the sentencing phase occurs. See supra, at 184–
185. But state law does not control Simmons’ applicability,
nor does the due process right turn on whether the defend-

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208 RAMDASS v. ANGELONE
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ant has already been found parole ineligible at the exact mo-
ment of sentencing. Simmons itself makes this entirely
clear. Both aspects of the Virginia Supreme Court’s hold-
ing, then, applied a “rule that contradicts the governing law
set forth in” Simmons.
We also held in Williams that “[a] state-court decision will
also be contrary to this Court’s clearly established precedent
if the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and never-
theless arrives at a result different from our precedent.”
529 U. S., at 406. The Virginia Supreme Court’s decision
was also contrary to Simmons in this respect. Because the
“hypothetical future developments” rejected in Simmons
are materially indistinguishable from the future possibility
here, the Virginia court’s decision is contrary to Simmons.
Even assuming the correct rule had been applied, the
Virginia Supreme Court’s decision would be an “unreason-
able application” of Simmons. That court held that the
Pizza Hut conviction would count as a strike, but not the
Domino’s Pizza robbery verdict. The only distinction is the
lack of an entry of judgment, and the only reason that mat-
ters is because the verdict may be set aside by a post-trial
motion. But that possibility remains identical for both
crimes. To disregard one of those hypothetical possibilities
but not the other based on a state-law distinction that has
absolutely no relevance to the probability that the verdict
will be set aside is an unreasonable application of Simmons.35
35 Three remaining points should be addressed. First, Teague v. Lane,
489 U. S. 288 (1989), does not bar relief. Teague’s antiretroactivity doc-
trine is irrelevant here, as Simmons was decided before Ramdass’ convic-
tion became final. See 187 F. 3d 396, 404, n. 3 (CA4 1999) (case below).
Nor is Teague’s bar of applying “new rules” on federal habeas review any
barrier; because Ramdass’ case falls squarely within Simmons, that case
controls entirely, and no new rule is necessary.
The second point concerns the plurality’s suggestion that Ramdass
might have waived his Simmons claim. See ante, at 162–163, 177. It is
not necessary to discuss the issue at length. It suffices to note that this

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209 Cite as: 530 U. S. 156 (2000)
Stevens, J., dissenting
VI
Nothing in the above arguments should distract us from
the fact that this is a simple case. The question turns on
whether the hypothetical possibility that the trial judge
might fail to sign a piece of paper entering judgment on a
guilty verdict should mean that the defendant is precluded
from arguing his parole ineligibility to the jury. We should
also not be distracted by the plurality’s red herring—the pos-
sibility of setting aside the verdict by a post-trial motion.
Not only is that possibility indistinguishable from the non-
exhaustive list of hypothetical future possibilities we dis-
missed in Simmons, but it also fails to distinguish this case
from the many other possibilities that are part of the state
criminal justice system, and fails to distinguish Ramdass’
convictions from each other.
The plurality’s convoluted understanding of Simmons and
its diverse implications necessitate a fair amount of dis-
entangling of its argument. But, once again, this should
not divert us from the plain reality of this case. Juries want
to know about parole ineligibility. We know how important
is precisely the argument that Virginia raised on remand to the Virginia
Supreme Court. That court was not persuaded by the argument, nor was
any court during the entire state and federal habeas proceedings. See,
e. g., App. 219, 225–226, 281–284 (Magistrate’s Report) (discussing its own
and other courts’ rejection of waiver argument); 187 F. 3d, at 402 (case
below) (same). It is therefore not surprising that Virginia failed to argue
waiver in its brief in opposition and arguments not raised therein are
themselves normally deemed waived. See Caterpillar Inc. v. Lewis, 519
U. S. 61, 75, n. 13 (1996).
Finally, that Ramdass’ counsel argued that he would go to jail “for the
rest of his life” does not at all satisfy Simmons’ requirement. Ante,
at 161. The entire point of Simmons is that the jury will often misunder-
stand what it means to sentence a defendant to “life.” Consequently, that
Ramdass was able to tell the jury he would get “life” simply does not help
unless he is also permitted to tell the jury that life means life without the
possibility of parole. Indeed, the very fact that the jury’s question came
after counsel made this argument demonstrates that the jury was uncer-
tain about what that statement meant.

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210 RAMDASS v. ANGELONE
Stevens, J., dissenting
it is to their life-and-death decisionmaking. We know how
misinformed they are likely to be if we do not give them
this information. We know Simmons has worked,36 and we
know the States have wholeheartedly embraced it.37
Moreover, we know this jury thought the information was
critical; we know this jury misunderstood what a “life” sen-
tence meant; we know this jury would have recommended
life instead of death if it had known that Ramdass was parole
ineligible; and we know this jury did not get a clear answer
to its question. We also know that Virginia entrusts to the
jury the solemn duty of recommending life or death for the
defendant. Why does the Court insist that the Constitution
permits the wool to be pulled over their eyes?
I respectfully dissent.
36 See, e. g., Finn, Washington Post, at A1 (recounting how, after Virginia
adopted life without parole alternative in 1995, and after Simmons, “[t]he
number of people given the death sentence in Virginia has plummeted,”
and describing “[s]imilar declines . . . in Georgia and Indiana” as well as
in Maryland).
37 See Yarbrough v. Commonwealth, 258 Va. 347, 519 S. E. 2d 602 (1999)
(extending Simmons to apply even when State does not argue future dan-
gerousness); ante, at 178.