Appendix — Ramdass v. Angelone

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No.

Michele J. Brace, Esq.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999 -

Bossy LEE RAMDASS,

Petitioner,

Vv.

RONALD ANGELONE, DIRECTOR,

VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

Imminent Execution Scheduled

November 23, 1999

F. Nash Bilisoly, Esq.

VIRGINIA CAPITAL REPRESENTATION Counsel of Record

RESOURCE CENTER

John M. Ryan, Esq.

Suite 510 VANDEVENTER BLACK, LLP

1001 East Main Street 500 World Trade Center

Richmond, VA 23219 Norfolk, VA 23510

(804) 643-6845 (757) 446-8600

Counsel for Petitioner Counsel for Petitioner

APPENDIX TABLE OF CONTENTS

Fourth Circuit Opinion sought to be reviewed:

Ramdass v. Angelone, 187 F.3d 396 (4th Cir. 1999)

District Court Opinion:

Ramdass v. Angelone, 28 F.Supp. 2d. 343 (E.D. Va. 1998).............. 21

Opinion of Supreme Court of Virginia:

Ramdass v. Commonwealth of Virginia, 450 S.E.2d. 360 (1994)............. 53

United States Supreme Court Remand:

Ramadass v. Virginia, 512 U.S. 1217 (1994). .............2... 55

Opinion of Supreme Court of Virginia:

Ramdass v. Commonwealth of Virginia, 437 S.E.2d 566 (1993). ..... 56

Order on Petition for Rehearing and Rehearing En Banc

United States Court of Appeals for the Fourth Circuit, September 17, 1999. . . 65

Rule 3A: 15, Rules of the Supreme Court of Virginia... .... 67

Code of Virginia § 53.1-151, Eligibility for Parole............... 68

South Caroline Code § 16-3-20, Punishment for Murder........... 71

Il.

The district court further concluded that

was in constructive possession of

the gun and drugs when they were discov-

ered in the course of the search of his car.

We agree.

{2,3] A person has constructive pos-

session over contraband when he has

ownership, dominion, or control over the

contraband itself or over the premises or

vehicle in which it was concealed. See,

e.g., United States v. Blue, 957 F.2d 106,

107 (4th Cir.1992) (en banc). In this

case, as the district court noted, not only

did appellant own the car in which the

contraband was concealed, but appellant

was the only person in the car when it

was stopped, the gun was under a floor

mat on the driver’s side, and the drugs

were located in a compartment to the left

of the steering wheel. When taken to-

gether, these findings amply support the

district court’s conclusion that appellant

constructively possessed the gun and

drugs found during the search.

The judgment of the district court is

affirmed.

AFFIRMED

o Funmounees

Bobby Lee RAMDASS, Petitioner-

Appellee,

Ronald J. ANGELONE, Director, Vir-

ginia Department of Corrections,

Respondent—Appellant.

396 a

Bobby Lee Ramdass, Petitioner-

Appellant,

Ronald J. Angelone, Director, Virginia

of Corrections,

Respondent-Appellee.

Nos. 98-30, 98-32.

United States Court of Appeals,

Fourth Circuit.

Argued May 4, 1999.

Decided Aug. 3, 1999.

Petitioner convicted of capital murder

in state court sought habeas corpus relief,

after exhausting state appellate and habe-

as procedures. The United States District

Court for the Eastern District of Virginia,

Raymond A. Jackson, J., 28 F.Supp.2d 343,

granted writ of habeas corpus on one

claim. State appealed, and petitioner cross-

appealed. The Court of Appeals, Niemey-

er, Circuit Judge, held that: (1) whether

petitioner was parole ineligible, and thus

entitled to inform jury of that status, was

question of state law; (2) state court’s legal

determination that petitioner was eligible

for parole was not reviewable by federal

habeas court; (3) petitioner was not denied

assistance of mental health expert; and (4)

petitioner was not deprived of effective

assistance of counsel.

Affirmed in part and reversed in part.

Murnaghan, Circuit Judge, concurred

in part, dissented in part, and filed opinion.

1. Habeas Corpus 364, 366

Petitioner preserved, for habeas re-

view, his claim that jury in capital murder

trial should have been informed of peti-

tioner’s alleged parole ineligibility, by rais-

ing claim in his first direct appeal to state

court, in his direct appeal on remand from

the United States Supreme Court, and in

his state habeas petition. 28 U.S.C.A.

§ 2254(b).

murder

is relief,

1d habe-

District

Virginia,

9.2d 343,

on one

er cross-

Niemey-

whether

and thus

itus, was

rt’s legal

3 eligible

y federal

ot denied

3; and (4)

effective

i in part.

‘oncurred

i opinion.

ibeas re-

ud murder

\ of peti-

', by rais-

d to state

and from

t, and in

US.C.A.

®@ RAMDASS v. wore 397

Cite as 187 F.3d 396 (4th Cir. 1999)

2. Constitutional Law @=268(2.1, 11)

A defendant in a capital case is enti-

tled, under the due process clause, to in-

form the sentencing jury of parole ineligi-

bility by argument or, on his request, by

instruction from the court when (1) the

prosecution makes the “future dangerous-

ness” argument that the defendant will

pose a threat to society in the future and

(2) the only available alternative sentence

to death is life imprisonment without the

possibility of parole. U.S.C.A. Const.

Amends. 5, 14.

3. Courts 100(1)

Where Supreme Court decided Sim-

mons case, holding that capital defendant

may raise issue of parole eligibility at sen-

tencing when prosecution argues “future

dangerousness,” before petitioner’s direct

appeal was final; application of Simmons

to federal habeas petition was not barred

on retroactivity grounds.

4. Habeas Corpus 516.1

Parole eligibility for a state conviction

is a state law question.

5. Constitutional Law ¢=270(2)

A state trial court must determine the

question of whether a capital defendant is

entitled to inform the jury of his alleged

parole ineligibility, under due process

clause, based on whether state law renders

that defendant ineligible for parole.

U.S.C.A. Const.Amend. 14.

6. Habeas Corpus 505

Even if petitioner’s due process right

to inform capital jury of his alleged parole

ineligibility, where prosecution argued fu-

ture dangerousness, was determined by

practical, rather than legal, parole ineligi-

bility, such rule was not clearly estab-

lished, as required to obtain federal habeas

relief on claim that petitioner was deprived

of that right because he was, as a practical

matter, ineligible for parole. 28 U.S.C.A.

§ 2254(d)(1).

7. Habeas Corpus 505

State court’s legal determination that

defendant was eligible for parole, and was

thus not entitled to inform capital jury that

he was parole ineligible, was not subject to

review by federal habeas court. 28

U.S.C.A. § 2254(a).

8. Habeas Corpus 505

Even if federal habeas court could

review state court’s legal determination

that petitioner was eligible for parole, and

was thus not entitled to inform capital jury

that he was parole ineligible, state court’s

determination did not rely on improper

form-over-substance interpretation. of

state’s three-strikes statute, despite fact

that petitioner would have been parole ine-

ligible if judgment on separate conviction

had been entered 19 days earlier. Va.

Code 1950, § 53.1-151, subd. B1.

9. Habeas Corpus 385

Petitioner did not preserve, for feder-

al habeas review, his claim that state Su-

preme Court’s interpretation of its parole

eligibility statute was so arbitrary as to

violate due process, as that court’s mere

finding that petitioner was parole eligible

did not also implicitly encompass conclu-

sion that parole eligibility finding comport-

ed with due process. U.S.C.A. Const.

Amend. 14; VacCode 1950, § 53.1-151,

subd. B1.

10. Habeas Corpus 381

The standard for state court exhaus-

tion prior to filing a federal habeas petition

is not whether a petitioner presented the

identical claim in state court but rather

whether he fairly presented his federal

claim to the state court.

11. Habeas Corpus 383

A claim is “fairly presented” to state

court, and thus preserved for federal habe-

as review, when the petitioner presented

to the state courts the substance of ‘his

federal habeas corpus claim; the ground

relied upon must be presented face-up and

398 a § Tf

squarely, and the federal question must be

plainly defined.

See publication Words and Phras-

es for other judicial constructions

and definitions.

12. Habeas Corpus 383

Habeas petitioner preserved sub-

stance of his federal claim that he was

denied a mental health expert in violation

of due process, even though claim ap-

peared in his state habeas petition under

heading of ineffective assistance of counsel

and subheading of failure to secure a men-

tal health expert. US.CA. Const.

Amends. 6, 14.

13. Constitutional Law €268.2(3)

Costs 302.4

Defendant was not denied assistance

of mental health expert, in violation of due

process, absent showing to trial court that

his mental state was at issue in his defense

of the charges or that, in arguing future

‘dangerousness in the sentencing phase,

the prosecution used expert psychiatric

testimony. U.S.C.A. Const.Amend. 14.

14. Habeas Corpus 383

Petitioner failed to preserve, for habe-

as review, claim that state statute provid-

ing for assistance of mental health expert

was arbitrarily enforced, in violation of due

process, because, in his state habeas peti-

tion, petitioner stated only that his rights

under the state statute had been denied,

not that the denial violated his right to due

process. U.S.C.A. Const.Amend. 14; Va.

Code 1950, § 19.2-264.3:1.

15. Criminal Law 641.13(7)

Trial counsel’s alleged failure to object

to appointment of particular mental health

by expert, and defendant could not show

reasonable probability that court would

have either removed expert upon objection

or appointed an additional expert upon

request. U.S.C.A. Const.Amend. 6.

ARGUED: Katherine P. Baldwin, As-

sistant Attorney General, Office of the At-

torney General, Richmond, Virginia, for

Appellant. F. Nash Bilisoly, IV, Vande-

venter Black, L.L.P., Norfolk, Virginia, for

Appellee. ON BRIEF: Mark J. Earley,

Attorney General of Virginia, Office of the

Attorney General, Richmond, Virginia, for

Appellant. John M. Ryan, Vandeventer

Black, L.L.P., Norfolk, Virginia; Michele

J. Brace, Virginia Capital Representation

Resource Center, Richmond, Virginia, for

Appellee.

Before WIDENER, MURNAGHAN,

and NIEMEYER, Circuit Judges.

Affirmed in part and reversed in part by

published opinion. Judge Niemeyer wrote

the opinion, in which Judge Widener

joined. Judge Murnaghan wrote an

opinion concurring in part and dissenting

in part.

OPINION

NIEMEYER, Circuit Judge:

A Fairfax County, Virginia court con-

victed Bobby Lee Ramdass of capital mur-

der and sentenced him to death for the

murder of Mohammed Kayani during the

robbery of the convenience store where

Kayani was a clerk. On Ramdass’ petition

for a writ of habeas corpus, filed under 28

U.S.C. § 2254, the district court granted

the writ and ordered the state court to

resentence Ramdass, concluding that the

state court had denied Ramdass due pro-

cess by denying him the opportunity estab-

lished by Simmons v. South Carolina, 512

US. 154, 114 S.Ct. 2187, 129 L.Ed2d 133

(1994), to tell the jury during sentencing

that he was ineligible for parole. The

‘error nby OF a tay ee.

® RAMDASS v. ANGELONE 399

Cite as 187 F.3d 396 (4th Cir. 1999)

district court rejected the other grounds standing behind Ramdass, saw Ramdass

advanced by Ramdass in his petition. shoot Kayani in the head on his second

Accepting the Virginia Supreme Court’s attempt to get the weapon to fire.

state law determination that Ramdass was

not, at the time of his sentencing proceed-

ings, legally ineligible for parole, we con-

clude that Simmons was not applicable.

Accordingly, we reverse the district court’s

order insofar as it concluded that Sim-

mons required the writ to issue. Finding

no error in the district court’s disposition

of the other issues, we affirm the remain-

ing portion of the district court’s order.

The facts of Kayani’s murder are related

by the Virginia Supreme Court as follows:

During the night of September 1 and

early morning of September 2, 1992,

Ramdass and Darrell Wilson, both

armed with pistols, were returning home

in a car with three other men, Shane

Singh, Edward O’Connor, and Candeler-

io Ramirez, after abandoning a plan to

rob persons at a Roy Rogers restaurant

in Fairfax County. On the way, Ram-

dass suggested that they rob persons at

a 7-Eleven store on Buelah Street in

Fairfax County.

Accordingly, near one o’clock on the

morning of September 2, the five men

entered the 7-Eleven store. Ramdass

entered first and “drew” his pistol on

Kayani, a 7-Eleven clerk who was be-

displayed his pistol, ordered all the cus-

tomers to lie on the floor and not look at

him. The other three men, who were

unarmed, took the customers’ wallets,

money from the cash register, and ciga-

rettes and lottery tickets from the

store’s stock.

After Ramdass ordered Kayani to

open the safe, Kayani knelt down next to

the safe and unsuccessfully tried to open

it. Ramdass squatted next to Kayani

and yelled at him to open the safe “or

I'll blow your f head off.” Wilson fired

his pistol at one of the customers on the

floor. Immediately thereafter, Singh,

Just after Ramdass shot Kayani, Ra-

mirez returned from a back room in the

store. Ramirez saw Ramdass laughing

as he stood over Kayani’s body. Later,

Ramirez heard Ramdass say that he

shot Kayani because he “took too long.”

Shortly thereafter, Ramirez opened the

front door, and Wilson, Singh, and

O’Connor ran out. As Ramirez held the

door open, he urged Ramdass to “[cJome

on.” However, Ramdass was “clicking

the gun at the people on the floor” and

told Ramirez to “[sJhut up or I'll put one

in you.” One of the customers also

heard the clicking of the gun as Ram-

dass left.

When they got in the car, Ramirez

heard Ramdass ask Wilson, “Why didn’t

you get rid of the people on the floor?”

After the men divided the robbery

proceeds at Singh’s home, Ramdass told

Ramirez, “Don’t tell anybody about this

[or] I'll kill you and I'll kill your whole

family.”

iat

une

pits ie

ary

PeEeeet

*§

400 Sch cteen call

dictment and a trial, a Fairfax County jury

found Ramdass guilty of capital murder in

the commission of armed robbery as well

as illegal use of a firearm. Ramdass had

earlier pled guilty to one count of robbery.

At the sentencing phase of trial, the

Commonwealth of Virginia sought the

death penalty, arguing that Ramdass pre-

sented “a continuing serious threat to soci-

ety”—the “future dangerousness” predi-

cate for imposition of the death penalty.

See Va.Code Ann. § 19.2-2642. In sup-

port of this argument, the Commonwealth

presented evidence of Ramdass’ history of

theft-related crimes beginning at age 14

and his pattern of recidivism during peri-

ods of escape or probation. More specifi-

cally, the prosecution detailed how, within

three months of his release on mandatory

parole after serving four years of a seven-

year sentence for robbery, Ramdass com-

mitted a series of at least six armed rob-

beries. The first two robberies occurred

on August 25, 1992, when Ramdass robbed

a Pizza Hut in Fairfax County, abducting a

woman and hitting a man. Four days

later, he robbed a clerk at an apartment-

hotel in Alexandria and struck him in the

head with a gun. On August 30, 1992, he

shot and robbed a cab driver. Later that

evening, he robbed a clerk at a Domino’s

Pizza in Arlington. Finally, Ramdass

1992, during the sixth robbery in this eight

day spree. See Ramdass I, 437 S.E.2d at

to be a hundred an? twenty two, he will

1. Ramdass’ eligibility at the time of the

jury asked: “if the Defendant is given life,

is there a possibility of parole at some time

before his natural death?” While recog-

nizing that Virginia law did not permit a

sentencing jury to be informed of the de-

fendant’s parole eligibility, Ramdass’ coun-

sel nevertheless maintained that “the [ju-

rors’} question itself implies that they have

a perception that if they give a life sen-

tence that he will be out in a very short

period of time” and that it was necessary

to inform the jury otherwise with “some

kind of language that would balance out

that perception.” Over defense counsel’s

objection, the trial judge told the jurors —

that they “should impose such punishment

as [they] feel is just under the evidence

and within the instructions of the Court”

and that they “are not to concern [them-

jselves with what may happen afterwards.”

The jury returned a verdict recommending

death on the capital murder count, based

upon Ramdass’ “future dangerousness,”

and recommending four years imprison-

ment on the firearm count.

At the sentencing hearing in April 1993,

Ramdass’ counsel urged the court to im-

pose a sentence of life in prison instead of

death in light of Ramdass’ ineligibility for

parole under Virginia’s three-strikes provi-

sion.' See Va.Code Ann. § 53.1-151(B1).

Defense counsel proffered to the court that

three jurors had told him that they would

have imposed a life sentence rather than

death if they had known that Ramdass

would not be eligible for parole. Rejecting

defense counsel’s request, the court sen-

tenced Ramdass to death.

2187, 129 L.Ed.2d 138 (1994), holding that

when a prosecutor argues future danger-

ousness to a capital sentencing jury, @

defendant who is parole ineligible has a

due process right to respond to that argu-

ment by informing the jury, through argu-

ment or instruction, of his ineligibility for

parole. After deciding Simmons, the Su-

preme Court granted Ramdass’ petition

for certiorari and remanded his case to the

Virginia Supreme Court for reconsidera-

tion in light of Simmons. See Ramdass v.

Virginia, 512 US. 1217, 114 S.Ct. 2701,

129 L.Ed.2d 830 (1994).

On remand, Ramdass asserted that be-

cause he was ineligible for parole under

Virginia’s three-strikes statute, Simmons

applied to his case and required that he be

allowed to “meet the state’s case against

him” by informing the jury of his parole

ineligibility. The Virginia Supreme Court,

however, reaffirmed Ramdass’ death sen-

tence, concluding that the holding of Sim-

mons was not implicated. Noting that

Simmons applies “only if Ramdass was

ineligible for parole when the jury was

sion].” Ramdass v. Commonwealth

(“Ramdass II”), 248 Va. 518, 450 S.E.2d

360, 361 (1994) (internal quotation marks

omitted). While recognizing the Pizza Hut

conviction and the Kayani murder convic-

tion as predicate offenses under the three-

strikes statute, the court rejected Ram-

dass’ argument that the January 7, 1993

jury verdict of guilty in the Domino's Pizza

robbery was also a predicate conviction

because “[jJudgment had not been entered

on that verdict.” Jd Accordingly, the

court stated, “it cannot be considered as a

conviction” under the three-strikes provi-

sion. Id. (citing Smith v. Commonwealth,

134 Va. 589, 113 S.E. 707, 709 (1922).

under Virginia law he was not ineligible for

parole. Ramdass also claimed that his

trial counsel were constitutionally ineffec-

tive for, inter alia, failing to investigate

and to object to the appointment of Dr.

trial, in violation of both Ake v. Oklahoma,

470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53

Ramdass’ Simmons claim was barred from

review under the rule of Hawks v. Coz,

his claim on various other grounds reject-

ed by the district court.

In its appeal, the Commonwealth of Vir-

ginia raises two issues: (1) that the Sim-

mons claim was defaulted because it was

not properly raised in state court, and (2)

that Ramdass is, in any case, not entitled

to relief under Simmons because, had he

2. The Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), establishing

the applicable standard of review, provides in

relevant part:

402

been sentenced to life imprisonment, he

would not have been parole ineligible un-

der Virginia law.

{1] The Commonwealth’s first point—

that Ramdass failed to preserve his Sim-

mons claim by raising it in state court as

required by 28 U.S.C. § 2254(b) (barring

federal courts from entertaining habeas

appeal, in his direct appeal on remand

from the United States Supreme Court,

and in his state habeas petition. Indeed,

the most compelling evidence that Ram-

dass did not default his Simmons claim is

the fact that the Virginia Supreme Court

disposed of that claim by declaring it

barred from review on state habeas by the

rule of Hawks v. Cox, 211 Va 91, 175

S.E.2d 271 (1970), which proscribes the

relitigation of claims that have already

been adjudicated on the merits in state

court on direct appeal.

While it is true, as the Commonwealth

points out, that Ramdass did not specifical-

ly contest the parole eligibility determina-

tion in his state habeas petition, he did

assert the broader, more basic claim,

which he had made all along, that the trial

court’s refusal to give the jury that infor-

mation on his request violated his constitu-

tional right to due process. We believe

that the Commonwealth’s characterization

of Ramdass’ Simmons claim for this pur-

pose is unduly narrow. Accordingly, we

conclude that the district court did not err

in finding that the Simmons claim was not

defaulted. We now turn to the merits.’

An application for a writ of habeas corpus

on behalf of a person in custody to

the judgment of a State court not be

granted with to claim that was

Cite as 187 F.3d 396 (4th Cir. 1999)

Understanding first the precise rule in

Simmons will aid our analysis of Ram-

dass’ claims. In Simmons v. South Car-

olina, 512 U.S. 154, 114 S.Ct. 2187, 129

L.Ed.2d 183 (1994), the prosecutor had

argued to the jury during the penalty

phase of trial that the death sentence was

appropriate because Simmons, who had as-

saulted and killed several elderly women,

was a future danger to society. To rebut

this argument, Simmons contended that

because he was only a threat to elderly

women, none of whom he would ever en-

counter in prison, he did not pose such a

danger. He proffered evidence that he

was legally ineligible for parole and re-

quested an instruction to the jury that if

sentenced to life imprisonment, he would

remain imprisoned “for the balance’ of his

natural life.” Jd at 160, 114 S.Ct. 2187.

The trial court denied Simmons’ request to

inform the jury, either by argument or

instruction, of his ineligibility for parole

under South Carolina law. The United

States Supreme Court ruled that this d:-

nied Simmons due process as guaranteed

by the Fourteenth Amendment. Id. at

156, 171, 114 S.Ct. 2187 (Blackmun, J.,

plurality opinion); id at 178, 114 S.Ct.

2187 (O’Connor,-J., concurring). We rec-

ognize Justice O’Connor’s concurrence as

the controlling opinion in Simmons be-

cause it represents the narrowest grounds

upon which a majority of the Court

agreed. See Keel v. French, 162 F.3d 263,

270 (4th Cir.1998), cert. denied, —- US.

—, 119 S.Ct. 2358, 144 L.Ed2d 249

(1999); Townes v. Murray, 68 F.3d 840,

849 (4th Cir.1995); see also O'Dell v. Neth-

erland, 521 U.S. 151, 158, 117 S.Ct. 1969,

138 L.Ed.2d 351 (1997).

Writing for the plurality, Justice Black-

mun held “that where the defendant’s fu-

proceedings unless the adjudication of the

claim—

(1) resulted in a decision that was con-

trary to, or an enveasonsile appl

cation of, clearly established Federal law,

as determined by the Supreme Court of the

United States; or

such information, the plurality

ing alternative, namely, that life imprison-

ment meant life without parole.” Jd at

162, 114 S.Ct. 2187.

In her concurrence, Justice O’Connor

recognized that when a state prosecutor

argues future dangerousness to the jury,

the defendant’s only opportunity to rebut

that argument will often be by telling the

jury that “he will never be released from

prison.” Jd. at 177, 114 S.Ct. 2187. Jus-

tice O’Connor went on to conclude that

in such a case the defendant should be

allowed to bring his parole ineligibility

to the jury’s attention—by way of ar-

gument by defense counsel or an in-

struction from the court—as a means

of responding to the State’s showing of

future dangerousness. And despite our

general deference to state decisions re-

garding what the jury should be told

about sentencing, I agree that due pro-

cess requires that the defendant be al-

lowed to do so in cases in which the

only available alternative sentence to

death is life imprisonment without pos-

sibility of parole and the prosecution

argues that the defendant will pose a

threat to society in the future.

Id.

[2] Accordingly, the grounds on which

both the plurality and Justice O’Connor

(2) resulted in a decision that was based

on an unreasonable determination of the

facts in light of the evidence presented in

the State court

28 U.S.C. § 2254(d).

ee a

404 a REPORTER, 3d SERIES ]

agree are summarized in Townes v. Mur-

ray, 68 F.3d 840, 850 (4th Cir.1995):

Simmons does not hold, es the plurality

sit

pile

is parole ineligible.” Jd at (177, 114

S.Ct. 2187] (O’Connor, J.).... Put in

terms familiar from philosophical and

(1) the prosecution makes the “future dan-

gerousness” argument that the defendant

will pose a threat to society in the future

and (2) the only available alternative sen-

tence to death is life imprisonment without

the possibility of parole.

[3] It is undisputed in this case that

Ramdass meets the first requirement.

ap-

peal was final. See Ramdass v. Virginia, 512

U.S. 1217, 114 S.Ct. 2701, 129 L.Ed.2d 830

(1994) (granting Ramdass’ petition for certio-

the principal source of dispute in the ap-

peal before us.’ Resolution of this issue

depends on how Simmons defines parole

ineligibility and whether, under the stan-

dards for making that determination,

Ramdass was ineligible for parole at the

time of the penalty phase of trial.

In Ramdass II, the Virginia Supreme

Court held that Simmons did not apply to

Ramdass’ case because Simmons required

legal ineligibility for parole and Ramdass

was not ineligible for parole under Virginia

law. The Court concluded that if sen-

tenced to life imprisonment on the Kayani

murder, Ramdass would not have been

“convicted of three separate felony of-

fenses” of murder, rape, or armed robbery

as required for parole ineligibility under

Virginia’s three-strikes statute. Va.Code

Ann. § 53.1-151(B1). According to the

court, Ramdass’ qualifying convictions at

the time were (1) the Pizza Hut armed

robbery conviction, upon which judgment

had been entered, and (2) the Kayani mur-

der conviction. The court acknowledged

that a jury had also returned a verdict

finding Ramdass guilty of armed robbery

in the Domino’s Pizza incident. But, rely-

ing on Smith v. Commonwealth, 134 Va.

589, 113 S.E. 707 (1922), which held that

conviction does not occur until judgment is

entered, the court concluded that the Dom-

ino’s Pizza robbery could not be counted as

the third strike under the Virginia statute

because the court had not entered judg-

ment on that guilty verdict at the time that

the jury in this case was deliberating Ram-

dass’ sentence. See Ramdass II, 450

S.E.2d at 361.

L.Ed.2d 351 (1997) (declaring that Simmons

announced a “‘new rule” under Teague for all

-mameonQB@aBsaSBESBSEESZES3R,

RAMDASS v. ANGELONE 405

Cite as 187 F.3d 396 (4th Cir. 1999)

Ramdass contends that the Virginia Su-

preme Court misconstrued Simmons as

requiring a state law determination of pa-

role ineligibility rather than “the function-

al and common-sense [im]possibility of pa-

role” as the trigger for the right to inform

the jury of parole ineligibility. Moreover,

even if state law governs the parole ineli-

gibility determination for purposes of ap-

plying Simmons, Ramdass, in substance,

accuses the Virginia Supreme Court of at-

tempting to avoid the application of Sim-

mons by adopting a novel and highly tech-

nical definition of “convicted” in the three-

strikes provision. Further, Ramdass

maintains that even if a conviction re-

quires the entry of judgment, as Ramdass

II held, the Domino’s Pizza guilty verdict

should count as a conviction because the

entry of judgment was nondiscretionary,

purely ministerial, and legally insignifi-

cant. In short, Ramdass argues for a

pragmatic, functional, nonlegalistic concept

of when a defendant is ineligible for pa-

role.

[4,5] Because Ramdass advances an

erroneous interpretation of Simmons, we

must begin by turning to Simmons itself.

Simmons grants capital defendants a due

process right in state trials to advise a jury

of parole ineligibility only when the only

alternative to a sentence of death is a

sentence of life imprisonment without the

possibility of parole. That condition can-

not be a general question of practicality

determined by a federal habeas court, as

Ramdass argues. Parole eligibility is a

state law question. Under Simmons, only

those capital defendants who are parole

ineligible under state law at sentencing are

constitutionally entitled to inform the jury

that they will be ineligible for parole if

sentenced to life imprisonment. In other

words, a trial court must determine the

question of whether Simmons applies to a

particular defendant based on whether

state law renders that defendant ineligible

for parole. See Simmons, 512 U.S. at 156,

114 S.Ct. 2187 (Blackmun, J., plurality

opinion) (limiting the holding to situations

where “state law prohibits the defendant’s

release on parole”); id. at 176, 114 S.Ct.

2187 (O’Connor, J., concurring) «(citing

South Carolina statutes to demonstrate

that for Simmons “the only available alter-

native sentence to death ... was life im-

prisonment without the possibility of pa-

role”).

When Ramdass argues that Simmons’

icability is not conditioned on “a

oe determination of ‘parole ineligibili-

ty’ at the moment of capital sentencing”

but rather on a nonlegalistic “common-

sense [impossibility of parole,” he ad-

vances a new interpretation of Simmons

that is simply incompatible with the logic

of Simmons itself. In relying on Justice

O’Connor’s statement that Simmons ap-

plies in “cases in which the only available

alternative sentence to death ... is life

imprisonment without possibility of pa-

role,” id. at 177, 114 S.Ct. 2187, to argue

that a federal, functional standard applies

to parole ineligibility determinations,

Ramdass ignores the Simmons plurality’s

repeated reference to state law as the de-

termining factor for whether or not a de-

fendant is ineligible for parole. See, @9.,

id. at 156, 114 S.Ct. 2187 (“We hold that

where the defendant’s future dangerous-

ness is at issue, and state law prohibits

the defendant’s release on parole, due pro-

cess requires that the sentencing jury be

informed that the defendant is parole ine-

ligible” (emphasie added)); id at 165, 114

S.Ct. 2187 (cbserving that the defendant's

ability to use parole ineligibility to rebut a

future dangerousness argument depends

“on the fact that he was legally ineligible

for parole” (emphasis added)); id at 165

n. 5, 114 S.Ct. 2187 (“The Due Process

Clause will not tolerate placing a capital

defendant in a straitjacket by barring

on a eee

406 @ 187 FEDERAL REPORTER, 3d @.:;

takes the phrase out of context. Nothing

in Justice O’Connor’s concurrence _indi-

cates that she disagreed with the plurality

and believed that the parole eligibility de-

termination was governed by anything

other than state law. On the contrary,

she cited state law to show that Simmons

himself was ineligible for parole, see id. at

176, 114 S.Ct. 2187, and she concluded

that Simmons was entitled to communicate

his parole ineligibility to the jury because

“the only alternative sentence to death

under state law was life imprisonment

without possibility of parole,” id at 178,

114 S.Ct. 2187 (emphasis added). See also

id. at 176, 114 S.Ct. 2187 (“In a State in

which parole is available, the Constitution

does not require (or preclude) jury consid-

eration of that fact”).

In addition, Ramdass’ argument for

equating legal parole ineligibility with a

common-sense impossibility of parole is at

odds with case law from this circuit. Un-

der Ramdass’ theory, defendants who are,

‘as a practical matter, unlikely to be pa-

roled—perhaps because a state only rarely

grants parole or because the defendant

would be over a hundred years old when

finally legally eligible—would be entitled

to a Simmons instruction. Yet, we have

consistently refused to apply Simmons to

cases in which the defendants were not

legally ineligible for parole at the time of

sentencing. See, e.g., Roach v. Angelone,

176 F.3d 210, 220 (4th Cir.1999) (refusing

to extend Simmons to apply to a defen-

dant who would not become eligible for

parole for twenty-five years, under state

law); Keel v. French, 162 F.3d 268, 270

(4th Cir.1998) (holding that “{sJince Keel

would have been eligible for parole had he

not been sentenced to death, [citing state

law], he is not entitled to any relief under

our current interpretation of Simmons”),

cert. denied, —— U.S. ——, 119 S.Ct. 2353,

144 L.Ed2d 249 (1999); Fitzgerald v.

4. In fact, § 2254(dX(1) can be seen as stricter

Greene, 150 F.3d 357, 367 (4th Cir.) (de-

clining to apply Simmons after Virginia

Supreme Court determined defendant was

not ineligible for parole under the three

strikes statute because his convictions

arose out of the same transaction), cert.

denied, — U.S. ——, 119 S.Ct. 389, 142

L.Ed.2d 321 (1998).

Finally, as a matter of simple logic, the

fact that a defendant will have no possibili-

ty of parole if given a life sentence can

only stem from the legal conclusion that

state law bars eligibility for parole. Be-

cause parole eligibility is entirely a crea-

ture of state law, Ramdass’ conception of

practical or functional parole eligibility

must inevitably collapse into a determina-

tion of state law.

{6] Even were we persuaded by Ram-

dass’ theory that practical rather than le-

gal parole ineligibility suffices to trigger

Simmons, we would conclude that it was

not “clearly established” as required by 28

U.S.C. § 2254(d)(1). Cf Keel, 162 F.3d at

269. This statutory provision, which re-

quires that the state court decision at issue

be inconsistent with “clearly established

Federal law, as determined by the Su-

preme Court of the United States,” 28

U.S.C. § 2254(d)(1), “imports an anti-ret-

roactivity principle into federal habeas

law.” Green v. French, 143 F.3d 865, 873

(4th Cir.1998). It resembles, but does not

simply codify, the anti-retroactivity doc-

trine of Teague v. Lane, 489 U.S. 288, 109

S.Ct. 1060, 108 L.Ed.2d 334 (1989). In

fact, we have observed that the standard

of § 2254(d)(1) is “even more stringent”

than Teague. Weeks v. Angelone, 176

F.3d 249, 266 n. 9 (4th Cir.1999); see also

Gosier v. Welborn, 175 F.3d 504, 510 (7th

Cir.1999) (noting that § 2254(d)(1) “closes

the escape hatches in Teague”). Thus,

either under Teague or under § 2254(d)(1),

individual conduct beyond the power of the

criminal law-making authority to proscribe”

or are “watershed rules of criminal proce-

dure.” See Green, 143 F.3d at 873 (quoting

Teague, 489 U.S. at 311-12, 109 S.Ct. 1060).

ve, 14 aT

by Ram-

r than le-

vo trigger

vat it was

ired by 28

32 F.3d at

which re-

yn at issue

stablished

7 the Su-

tates,” 28

a anti-ret-

al habeas

d 865, 873

t does not

aivity doc-

3. 288, 109

1989). In

» standard

stringent”

slone, 176

); see also

i, 510 (7th

(1) “closes

+ ae

ae RAMDASS v. woe 407

Cite as 187 F.3d 396 (4th Cir. 1999)

Ramdass’ argument for an extension of preme Court adopted an artful, form-over-

Simmons would fail.

[7] Having determined that Simmons

applies only to a capital defendant who,

under state law, is legally ineligible for

parole at the time of sentencing, we turn

to the question of whether Ramdass meets

this threshold requirement. The Virginia

Supreme Court held that, under the three-

strikes statute, he did not. See Ramdass

IT, 450 S.E.2d at 361. The district court

held that the state court’s conclusion was

an unreasonable determination of fact.

ven Ramdass v. Angelone, 28 F .Supp.2d at

As an initial matter, we clarify that the

parole eligibility determination is a ques-

tion of law, not fact, as the Virginia Su-

preme Court has recognized. See Fitzger-

ald, 150 F.3d at 367 (citing Fitzgerald v.

‘ Commonwealth, 249 Va. 299, 455 S.E.2d

506, 510 (1995)). Accordingly, to the ex-

tent that the district court’s decision to

grant the writ rested on the unreasonable-

determination-of-fact rationale, it cannot

stand.

More significantly, parole eligibility is a

question of state law and therefore is not

cognizable on federal habeas review. The

AEDPA provides explicitly that a federal

court “shall entertain an application for a

writ of habeas corpus in behalf of a person

in custody pursuant to the judgment of a

State court only on the ground that he is

in custody in violation of the Constitution

or laws or treaties of the United States.”

28 U.S.C. § 2254(a) (emphasis added).

Because the definition of what constitutes

a conviction in Virginia’s three-strikes stat-

ute and the application of that state law

definition to the facts of Ramdass’ case are

purely questions of state law, we have no

power to revisit these questions on federal

habeas review.

[8] Even if we were not so constrained,

however, we would be unpersuaded by

Ramdass’ argument that the Virginia Su-

substance interpretation of the three-

strikes statute to thwart his Simmons

claim. At most, Ramdass can complain

about the effect of the random timing of

his trials. If judgment had been entered

on the Domino’s Pizza robbery verdict 19

days earlier, then Ramdass would have

been ineligible for parole under the three-

strikes statute and accordingly entitled to

inform the jury of that fact. However,

given that Ramdass committed the Pizza

Hut robbery, the Domino’s Pizza robbery,

the Kayani murder and robbery, and sev-

eral other potentially qualifying offenses

within several days of each other, the ran-

dom order in which he was tried for these

various offenses was entirely foreseeable,

dictated only by the docket of the relevant

county court. In fact, it is equally possible

that Ramdass could have been tried on the

most serious charge—the Kayani mur-

der—first, in which case he would have

had only one qualifying conviction at the

time of sentencing and, thus, would be an

additional conviction short of making a

valid Simmons claim.

Second, Ramdass characterizes the Vir-

ginia Supreme Court’s reliance on Smith v.

Commonwealth, 134 Va. 589, 113 S.E. 707

(1922) (discussing the meaning of the term

“conviction” in the context of a statute

removing public officials from office upon

conviction of crimes of moral turpitude), as

a judicial version of grasping at straws.

Yet, sound reasoning supports Smith’s

holding that conviction requires an entry

of judgment, rather than simply a jury

verdict. Cf Fed.R.Crim.P. 32(d)(1) (re-

quiring an entry of judgment signed by

the judge). Even though Smith’s factual

predicate is wholly unrelated to parole eli-

gibility, the age-old rationale underlying

its definition of conviction is designed to

protect defendants. Requiring the entry

of judgment—even if it appears to be only

a formal step of the process—in contexts

in which additional negative consequences

are to be imposed based on the conviction,

provides an additional layer of procedural

408 * 187 FEDERAL REPORTER, 3d ®.;

protection against unfairness or corrup-

tion.

Third, Ramdass attempts to portray the

Smith decision as an irrelevant relic.

While the Virginia Supreme Court had not

cited this case in a published opinion since

the 1920s, the intermediate appellate court

has observed that “Virginia courts have

defined the word ‘convicted’ in accordance

with Smith, but only in the context of a

defendant who has been confronted with

some type of forfeiture.” Fields v. Com-

monwealth, 5 Va.App. 229, 361 S.E.2d 359,

$62 (1987) (purporting to limit Smith to its

facts). As a type of forfeiture, parole ineli-

gibility fits neatly within the narrow cir-

cumstances in which the Smith definition

of conviction is appropriate, or even neces-

sary. Upon amassing a given number of

convictions for certain crimes, a defendant

forfeits his right to be considered for pa-

role under the standard operation of the

parole system. This is precisely the kind

~ of serious deprivation that should not oc-

cur without the solemn imprimatur of the

court’s entry of judgment on the decision

of the jury. Finally, the fact that the

Virginia Supreme Court has remanded for

re-sentencing upon finding a Simmons vio-

lation in another case defeats the implica-

tion that the Virginia Supreme Court is

somehow hostile to enforcing the Simmons

right. See Mickens v. Commonwealth, 249

Va. 428, 457 S.E.2d 9 (1995).

We have included this discussion only in

an effort to dispel Ramdass’ insinuation

that the Virginia Supreme Court acted

craftily in denying his Simmons claim. In

the end, however, we reiterate that this

dispute about the meaning of the Virginia

three-strikes statute is wholly a question

of state law that cannot provide the basis

for a federal court to grant the writ of

habeas corpus. See 28 U.S.C. § 2254(a).

Ill

On his cross-appeal, Ramdass contends

that the district court erred in dismissing,

either as defaulted or meritless, the follow-

ing four other claims in support of his

habeas petition: (1) the Virginia Supreme

Court’s determination that he was eligible

for parole as of the time of sentencing

under Virginia law was so arbitrary as to

violate due process; (2) the denial of ac-

cess to assistance from a mental health

expert violated his right to due process;

(3) the ineffective assistance of counsel

denied him the constitutional right to coun-

sel; and (4) the denial of funds for expert

assistance and an evidentiary hearing vio-

lated his right to due process. We address

these claims in order.

[9] First, Ramdass claims that the Vir-

ginia Supreme Court's interpretation of

the three-strikes provision was so inconsis-

tent with Virginia precedent and so arbi-

trary that it violated due process. In re-

sponse to the Commonwealth’s contention

that this claim was defaulted by failure to

raise it in state court, he argues that it

could not have been defaulted because the

Virginia Supreme Court in fact addressed

it simply by concluding that he was parole

eligible under Virginia law. This argu-

ment, however, proves too much. Carried

to its logical conclusion, Ramdass’ argu-

ment would mean that every judicial ruling

carries with it an implicit, due process

rubber-stamp. There is no evidence that

the Virginia Supreme Court’s parole eligi-

bility determination silently encompassed

an additional conclusion that the parole

eligibility finding itself comported with due

process. Because, as Ramdass concedes,

ineffective assistance of state habeas coun-

sel will not show cause for his default, see

Mackall v. Angelone, 131 F.3d 442, 446-49

(4th Cir.1997), we have no power to reach

the merits of this independent due process

claim on federal habeas. See 28 U.S.C.

§ 2254(b)(1)(A). In any event, we would

reject the claim on the merits for the

reasons given in our discussion in Part

TI(C), above

Ramdass next challenges the district

court’s rejection of his claims that he was

was?

LO RO Te

RAMDASS v. ANGELONE 409

Cite as 187 F.3d 396 (4th Cir. 1999)

illegally denied the assistance of a mental

health expert based on two, separate theo-

ries: (1) the due process right to access to

a mental health expert under Ake v. Okla-

homa, 470 U.S. 68, 105 S.Ct. 1087, 84

L.Ed.2d 53 (1985), and (2) the due process

right to non-arbitrary enforcement of Vir-

ginia Code § 19.2-264.3:1, which grants

capital defendants the assistance of a men-

tal health expert. Although the district

court did not distinguish between these

two arguments, holding that they were

defaulted, we conclude (1) that the Ake

claim was preserved but that the Virginia

Supreme Court did not unreasonably apply

clearly established federal law in dismiss-

ing it, and (2) that the claim based on the

arbitrary enforcement of state law was

defaulted.

[10,11] The standard for state court

exhaustion prior to filing a federal habeas

petition is not, as the Commonwealth sug-

gests, whether a petitioner presented the

“identical” claim in state court but rather

whether he “fairly presented” his federal

claim to the state court. “A claim is fairly

presented when the petitioner presented

to the state courts the substance of his

federal habeas corpus claim. The ground

relied upon must be presented face-up and

squarely; the federal question must be

plainly defined.” Matthews v. Evatt, 105

F.3d 907, 911 (4th Cir.1997) (emphasis

added and internal quotation marks and

citations omitted).

[12] Under this standard, Ramdass did

include in his state habeas petition at least

the “substance” of his federal claim that he

was denied a mental health expert in viola-

tion of due process under Ake. Even

though the claim appeared under the head-

ing of ineffective assistance of counsel and

the sub-heading of failure to secure a men-

tal health expert, Ramdass nonetheless

grounded his claim on the seminal Su-

preme Court case, Ake. He summarized

the holding of Ake and alleged facts in

support of his claim that Dr. Samenow was

pro-prosecution and refused to assist the

defense by identifying any mitigating fac-

tors for the sentencing phase. Even so,

the Virginia Supreme Court dismissed this

claim, finding that it had no merit. In

doing so, the Virginia Supreme Court did

not unreasonably apply clearly established

federal law. See 28 U.S.C. § 2254(d).

[13] Ake provides a right to assistance

of a mental health expert only if a defen-

dant made a showing to the trial court that

his mental state was at issue in his defense

of the charges or if, in arguing future

dangerousness in the sentencing phase,

the prosecution used expert psychiatric

testimony. See Ake, 470 U.S. at 82-83,

105 S.Ct. 1087 (noting that the need for

the assistance of a psychiatrist is “readily

apparent” either when “the defendant is

able to make an ex parte threshold show-

ing to the trial court that his sanity is

likely to be a significant factor in his de-

fense” or “when the State presents psychi-

atric evidence of the [capital] defendant’s

future dangerousness” during the penalty

phase (emphasis added)). Neither condi-

tion was met here.

[14] The due process claim for the ar-

bitrary enforcement of a state statute was

defaulted because, in his state habeas peti-

tion, Ramdass stated only that his rights

under the state statute had been denied.

This is no more than a state law question.

Ramdass did not make the further argu-

ment, necessary to make the claim cogni-

zable on federal habeas review, that this

denial constituted a violation of his right to

due process under the Fourteenth Amend-

ment. See 28 U.S.C. § 2254(a).

{15] In support of his ineffective assis-

tance of counsel claim, Ramdass argues

that his trial counsel were deficient in fail-

ing to object to Dr. Samenow’s appoint-

ment and in failing to seek assistance from

an alternative mental health expert once

they realized that Dr. Samenow would not

be helpful. We conclude that the Virginia

Supreme Court did not unreasonably apply

clearly established federal law in dismiss-

; ae

ERS

—— ew /

410 187 FEDERAL REPORTER, @...

ing this claim for lack of merit. See 28

U.S.C. § 2254(d). ts

To prevail on his ineffective assistance of

counsel claim, Ramdass must meet two

well-established requirements. First, he

“must show that counsel’s representation

fell below an objective standard of reason-

ableness.” Strickland v. Washington, 466

U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). This is a difficult showing to

make because in assessing the reasonable-

ness of counsel’s course of action, “(oJur

review ... is highly deferential” to coun-

sel. Wilson v. Greene, 155 F.3d 396, 403

(4th Cir.1998) (citing Strickland, 466 U.S.

at 689, 104 S.Ct. 2052). Second, he must

demonstrate “a reasonable probability

that, but for counsel’s unprofessional er-

rors, the result of the proceeding would

have been different.” Strickland, 466 U.S.

at 694, 104 S.Ct. 2052. The district court,

assuming arguendo that Ramdass could

satisfy the deficiency prong of Strickland,

ruled that Ramdass’s ineffective assistance

claim failed because he could show no prej-

udice. See Ramdass, 28 F.Supp.2d at 370.

We agree.

Instead of presenting testimony from

Dr. Samenow, who had failed to identify

any mitigating factors in his report on

Ramdass, Ramdass’ trial counsel present-

ed testimony from Ramdass, his brother,

his mother, and a probation officer during

the penalty phase in an attempt to estab-

lish mitigating factors. Because the jury

was aware of the dysfunctional circum-

stances of Ramdass’ childhood, Ramdass

cannot now show a reasonable probability

that psychiatric testimony as to the same

circumstances would produce a different

result. Moreover, neither Ake, 470 U.S. at

83, 105 S.Ct. 1087, nor Virginia Code

§ 19.2-264.3:1(A) creates a right to a par-

1. I note that I concur only in the judgment

on the Ake claim. Ake provides that under

certain circumstances “the State must, at a

minimum, assure the defendant access to a

competent psychiatrist who will conduct an

appropriate examination and assist in evalua-

tion, preparation and presentation of the de-

fense.” Ake v. Oklahoma, 470 U.S. 68, 83,

ticular expert. Accordingly, Ramdass can-

not show a reasonable probability, as re-

quired by Strickland, that the Virginia

Supreme Court would have either removed

Dr. Samenow upon objection or appointed ~

an additional expert upon request.

On Ramdass’ final point, we conclude

that, because Ramdass failed to make out

a prima facie case as to his mental health

expert and ineffective assistance claims,

the district court did not err in denying

Ramdass funds for expert assistance or an

evidentiary hearing.

In sum, we reverse the district court’s

decision to grant Bobby Lee Ramdass’ pe-

tition for a writ of habeas corpus based

upon a Simmons violation. Because Sim-

mons is limited to situations where state

law renders the defendant legally, not

merely practically, ineligible for parole,

we conclude that the Virginia Supreme

Court did not unreasonably apply clearly

established federal law when it ruled that

Simmons did not apply to Ramdass’ case

because Ramdass was not ineligible for

parole under Virginia law. In addition,

we affirm the district court’s opinion as to

the remaining issues raised by Ramdass

on cross-appeal. The judgment of the

district court is

AFFIRMED IN PART AND RE-

VERSED IN PART.

MURNAGHAN, Circuit Judge,

concurring in part and dissenting in part:

I concur in the majority's handling of

most of the issues raised by Ramdass.' I

respectfully dissent, however, from the

majority's treatment of Ramdass’ Sim-

mons claim. Because it seems evident

105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ram-

dass presented ample evidence to show that

Dr. Stanton Samenow’s professed and public

views make him incompetent to aid a defen-

dant in finding and presenting mitigating fac-

tors at a defendant's sentencing phase, and

that Dr. Samenow did not conduct an appro-

priate examination. Dr. Samenow has pub-

‘onclude

ake out

] health

claims,

denying

ce or an

'‘ RAMDASS v. ae 411

Cite as 187 F.3d 396 (4th Cir. 1999)

that Ramdass should be able to inform the

jury, by argument or court instruction, of

his non-eligibility for parole if sentenced

for life imprisonment, I would affirm the

district court on the Simmons claim so

that the sentencing jury could be accurate-

ly informed that Ramdass would be parole

ineligible.

A clear statement of the factual context

of this case is useful to gain an under-

licly stated that criminals are a “different

breed of person,” (J.A. at 347), who seek to

manipulate the system for their own ends.

He has abandoned sociologic, psychologic,

and mental illness explanations for criminal

behavior and holds the view that “[m]ost di-

agnoses of mental illness [in criminals) result-

ed from the criminal’s fabrications.” (J.A. at

348.) Dr. Samenow’s published works state

that circumstances have nothing to do with

criminal violations and that “providing the

criminal with an opportunity to present ex-

cuses deferred him and us further and fur-

ther from change.”” (J.A. at 348.) According

to a report submitted to the district court by

Dr. Reuben Koller, Dr. Samenow’s views ob-

viate his ability to evaluate mitigating factors

relating to the history or character of a crimi-

nal defendant “because he is of the opinion

that no mitigating factors can exist.” (J.A. at

474.) Even if Dr. Samenow were to abandon

his public beliefs and identify mitigating fac-

tors, his testimony would be subject to dam-

aging impeachment on cross-examination

from his own publicly expressed views. In

fact, the record shows that just that happened

at another capital sentencing trial. Further,

Dr. Koller opined that Dr. Samenow’s exami-

nation of Ramdass was “incomplete, deficient

and inadequate according to conventional

psychological standards.” (Jd.) Dr. Koller’s

preliminary evaluation of the records avail-

challenges.

Taylor, 173 F.3d 425, 1999 WL 92435, at *6-

*9 (4th Cir.1999) (unpublished table disposi-

tion) (claiming Ake violation); Wright v. Ange-

lone, 151 F.3d 151, 161 (4th Cir.1998) (claim-

expert

Greene, 155 F.3d 396, 401 (4th Cir.1998), not

standing of the arbitrariness of the result

reached by the majority.

The jury found Ramdass guilty of the

Kayani murder on January 28, 1993. His

sentencing hearing began the next day.

At that hearing, the prosecution presented

as evidence of Ramdass’ future dangerous-

ness the fact that he had been found guilty

of the Pizza Hut robbery, see infra, and

the Domino’s Pizza robbery, see infra.

The Commonwealth also emphasized that

previously Ramdass had committed crimes

a competent expert and an appropriate exam-

ination, but see id. at 409 (Michael, J., concur-

ring) (noting that the Wilson majority did not

squarely reject the right to an appropriate

examination). I agree that Ake does not re-

quire Be -songch assistance of a psychiatric

expert.” See, , Pruett v. Thompson, 996

F.2d 1560, 1573 4b a. 12 (4th Cir.1993). In my

view, though, the Supreme Court requires

more than just a warm body with a prefix

attached to his name; Ake provides a right to

a “competent expert” and an “appropriate

examination.” Ake, 470 U.S. at 83, 105 S.Ct.

1087. (1 note that competence and appropri-

ateness, based on objective professional crite-

ria, are entirely different than effectiveness).

Ultimately, however, Ramdass’ Ake claim

must fail. On direct appeal I would follow

the Tenth Circuit and hold that Ake applies

eaae Se ae Seren ae Se a

and the indigent defen-

ys establishes the likelihood his mental con-

dition is a significant mitigating factor. See

Castro v. Oklahoma, 71 7a 180 1502, 1513 (10th

Cir.1995); Liles v. Saffle, 945 F.2d 333, 340-

41 (10th Cir.1991). Compare Tuggle v. Neth-

erland, 79 F.3d 1386, 1387-88 (4th Cir.1996)

(describing the Ake right as arising when the

first presents psychiatric testimo-

ny), with Swann, 173 F.3d 425, 1999 WL

92435, at *2 (stating Ake applies “when a

capital defendant's future dangerousness is to

(West Supp.1999), however, I believe that

Gtesn, 119 BOE 1290, 1388 0. § CD Co

le ee ae

evidence of future dangerousness is

established by the Supreme Court).

.) 2

412 187 FEDERAL REPORTER, 3d ®...

while released on “mandatory” parole.

While deliberating Ramdass’ sentence,.the

jury asked the judge, “if the Defendant is

given life is there a possibility of parole at

some point before his natural death?” (em-

phasis added). Rather than answering

that question, the judge told the jury that

they were “not to concern [themselves]

with what may happen” after they impose

his sentence. On January 30, 1998, the

jury imposed a sentence of death.

On appeal, the Supreme Court ordered

the Virginia Supreme Court to reconsider

Ramdass’ case in light of Simmons v.

South Carolina, 512 U.S. 154, 114 S.Ct.

2187, 129 L.Ed.2d 133 (1994). Simmons

involved facts almost identical to those at

bar. In Simmons, a defendant was made

parole ineligible by a conviction for capital

murder. At the sentencing phase for that

crime, the defendant requested that the

jury be instructed that a life sentence

would not carry with it the possibility of

~ parole. To bolster his position, the defen-

dant cited, inter alia, a study indicating

that more than 75 percent of those sur-

veyed in South Carolina considered the

amount of time a defendant would actually

have to spend in prison to be an “extreme-

ly important” or “very important” factor in

choosing between life and death. Sim-

mons, 512 U.S. at 159, 114 S.Ct. 2187. As

in the case at bar, during deliberations, the

jury asked the judge a single question:

“Does the imposition of a life sentence

carry with it the possibility of parole?” Jd

at 160, 114 S.Ct. 2187. The trial judge

gave a vague answer and instructed the

jury not to consider parole in reaching its

verdict. Jd Within minutes, the jury re-

turned a sentence of death. |

On remand in the case at bar, the Virgi-

nia Supreme Court held that Simmons

was inapplicabie because under Virginia

law, Ramdass was not technically parole

ineligible at the time the jury was deliber-

ating his capital sentence. Under Virginia

2. He was also awaiting trial on two other

armed robberies, both involving assault with

law, a felon is parole ineligible if he has

been “convicted” of three offenses of mur-

der, rape, or robbery with a deadly weap-

on (a “predicate conviction”); when multi-

ple predicate convictions are part of a

common act, transaction, or scheme, they

are counted as only one predicate convic-

tion. See Va.Code Ann. § 53.1-151(B1)

(Michie 1998) (the “three strikes law”).

At the time the capital jury was consid-

ering his sentence, Ramdass had been

found guilty of five robberies and one mur-

der.* One of the robberies involved no

deadly weapon and therefore was not a

predicate conviction. Two of the other

robberies were part of the same transac-

tion. On December 15, 1992, a jury had

found Ramdass guilty of two counts of

robbery and one count of using a firearm

in the commission of a robbery (the “Pizza

Hut robbery”). Judgment and sentence

for this crime was officially imposed on

January 22, 1998. At the time that Ram-

dass was sentenced on the Kayani murder,

this conviction was still subject to a motion

to set aside the verdict for trial error or

insufficiency of the evidence. See Va. Sup.

Ct. R. 3A:15(b) (Michie 1998). It was also

subject to an appeal. See VaCode Ann.

§ 17-116.05:3 (Michie 1996). The Virginia

Supreme Court counted the Pizza Hut rob-

bery as only one predicate conviction.

The final two armed robberies were also

part of one transaction. On January 7,

1998, in @ separate proceeding, a jury

found Ramdass guilty of two counts of

robbery and one count of using a firearm

in the commission of a robbery (the

“Domino’s Pizza robbery”). Judgment

and sentence on this crime was not offi-

cially imposed until February 18, 1993.

The Virginia Supreme Court reasoned

that the Domino’s Pizza robbery did not

count as a predicate conviction because at

the time of the Kayani sentencing, Ram-

dass had not yet been “convicted” of that

offense under the meaning of that term in

a deadly weapon.

“oe

* he has

of mur-

ly weap-

nm multi-

wt of a

ne, they

> convic-

-151(B1)

s law”).

motion to

gtenti

i! te

bitte

boeceet

HHH

414 ©@ ic: revera rerorren, 1 ss

Gardner v. Florida, 430 U.S. 349, 97 S.Ct.

1197, 51 L.Ed.2d 393 (1977), and Skipper

v. South Carolina, 476 U.S. 1, 106 S.Ct.

1669, 90 L.Ed.2d 1 (1986), that “elemental

due process require(s] that a defendant not

be sentenced to death ‘on the basis of

information which he had no opportunity

to deny or explain.’” Skipper, 476 U.S. at

5 n. 1, 106 S.Ct. 1669 (plurality opinion)

(quoting Gardner, 430 U.S. at 362, 97 S.Ct.

1197), quoted in part in Simmons, 512

U.S. at 164, 114 S.Ct. 2187 (plurality opin-

ion), and quoted in id. at 175, 114 S.Ct.

2187 (O’Connor, J., concurring in the judg-

ment). As both the plurality opinion and

the O’Connor concurrence‘ recognized, the

fact that the defendant will never be re-

leased from prison “will often be the only

way that a violent criminal can successfully

rebut the State’s case [of future danger-

ousness].” Simmons, 512 U.S. at 177, 114

S.Ct. 2187 (O’Connor, J., concurring in the

judgment); id at 163-64, 114 S.Ct. 2187

(plurality opinion) (“In assessing future

dangerousness, the actual duration of the

defendant’s prison sentence is indisputably

relevant.... Indeed, there may be no

greater assurance of a defendant’s future

nondangerousness to the public than the

fact that he never will be released on

parole.”).

This principle has full force in the case

at bar. At capital sentencing, the prosecu-

tion presented evidence of Ramdass’ fu-

ture dangerousness. Some of this evi-

dence included the fact that Ramdass had

committed the Pizza Hut robbery and the

Domino’s Pizza robbery. More important-

ly, the Commonwealth repeatedly referred

to the fact that Ramdass had committed

4. We have recognized Justice O'Connor's con-

currence as the controlling opinion in Sism-

mons. See Keel v. French, 162 F.3d 263, 270

(4th Cir.1998), cert. denied, — U.S. —, 119

S.Ct. 2353, 144 L.Ed.2d 249 (1999); Townes

v. Murray, 68 F.3d 840, 849 (4th Cir.1995).

many of his crimes while on parole. The

Commonwealth mentioned the phrase

“mandatory parole” several times, suggest-

ing to the jury that the Commonwealth

would have no choice but to parole Ram-

dass at some future date. In the face of

this evidence of future dangerousness,

Ramdass was rendered powerless to ex-

plain to the jury that, but for what was at

that point a meaningless ministerial act, he

was ineligible for parole under state law.*

Thus, under Gardner, Skipper, and Sim-

mons, Ramdass was denied his “elemental

due process” right to deny or explain the

Commonwealth’s evidence of future dan-

gerousness. See Simmons, 512 US. at

175 (O’Connor, J., concurring).

It is also important to remember the

audience of the Simmons right. Simmons

is concerned about the defendant’s ability

to present rebuttal evidence to a jury.

Thus, Simmons is grounded in the right to

present information which might affect a

jury's decision making. Juries are not

concerned about legal technicalities or re-

mote and theoretical possibilities. They

are concerned about practical realities.

The Supreme Court recognized this point

in Simmons... In Simmons, South Car-

olina argued that informing the jury that

the defendant would be parole ineligible

was inherently misleading because future

contingencies such as legislative reform,

commutation, and clemency might allow

the release of the prisoner. The plurality

rejected this argument, holding that the

defendant could not be denied the right to

rebut prosecution evidence of future dan-

gerousness merely because of “hypotheti-

cal future developments.” Simmons, 512

French, 162 F.3d 263, 270 (4th Cir.1998), and

Fitzgerald v. Greene, 150 F.3d 357, 367 (4th

Cir.1998), to defeat this straw man. In each

of those cases, however, the defendant re-

mained eligible for parole under state law

even when all ministerial acts were complet-

ed. Of course Simmons did not apply to each

of those defendants. Those cases are wholly

ment is based on his parole ineligibility under

state law.

“«

343

exhausting state appellate and habeas proce

dures, The Distriet Court, Jackson, J., held

that: (1) some but not all claims that jury

PINE = es eS 415

Cite as 187 F.3d 415 (4th Cir. 1999)

U.S. at 166, 114 S.Ct. 2187. The court tion requires us to treat the one as

! a

reasoned that a parole ineligibility instruc- certainty and the other as if it did not

tion was more accurate than no instruction exist.

at all, which would inevitably leave the Splitting when

jury to assume that the defendant would —

a man’s life is at would receive life sentence without possibility

eventually be released. Id. Nothing in post veme pane tO 8 Judiciary or 8 of parole if death sentence was nes Stas

Justice O’Connor’s concurrence indicates system. I do not believe that due were procedurally barred; (2) ee

that she disagreed with the plurality that process requires or allows such arbitrary sistance of counsel claim based on faite

results. I would hold that, regardless of object to appointment of mental health ex-

remote contingencies were irrelevant technical legalistic

the due process analysis. ; + he the

In the case at bar, the majority hides its Court,

reliance on hypothetical future develop- process

ments behind a state law shield. Because wholly

Ramdass did not become technically “pa- time the sentence were deliberating

role ineligible” under Virginia law until was oitiedly anal toy Go data

judgment was formally entered on the would i

Domino’s Pizza robbery, the majority parole.

holds that Simmons is inapplicable. But

at the time of the Kayani sentencing, only

some hypothetical future development as

remote as legislative reform, commutation,

or clemency, could have affected entry of

the Domino’s Pizza robbery conviction and

therefore prevented Ramdass from being

parole ineligible. The reason the Supreme

Court rejected reliance on such future PINE RIDGE COAL COMPANY, a

hypothetical developments is evident in the corporation, Plaintiff—Appellee,

arbitrary result of the case at bar. At the |

time of the Kayani sentencing, the court He

had already rejected Ramdass’ motions in LOCAL 8377, UNITED MINE WORK-

pert did not preserve for habeas review claim

state Supreme Court’s determination that ad-

was binding on federal court; (4) state Su-

preme Court’s summary disposition of habe-

as petition was adjudication on merits enti-

tled to deference in federal habeas corpus

review, (5) state Supreme Court made unrea-

sonable determination of facts and unreason-

ably applied a United States Supreme Court

precedent in determining that the Supreme

Court’s Simmons decision, requiring that

jury considering future dangerousness factor

in assessing whether to impose death penalty

would receive life imprisonment without pa- i

role if not put to death, was inapplicable i: i

because parole was possible in present case; if

(6) petitioner did not receive ineffective assis- |i:

tance of counsel; (7) rule requiring ex parte \|

hearings on defendant’s requests for appoint- 4)

the Domino’s Pizza robbery case to set —©RS OF AMERICA, an unincorporat- ment of experts would not be applied for first |

aside the jury's verdict before entry of ed labor association; Local 6426, Bobby Lee RAMDASS, Petitioner, time on collateral review; (8) exclusion of ;

judgment. See Virginia Sup.Ct. R. United Mine Workers of America, an v. polygraph evidence did not violate petition- {|

3A:15(a). Formal entry of the conviction Unincorporated labor association, De- Ronald J. ANGELONE, Director of er’s constitutional rights; (9) withholding of {

at that point was merely a ministerial act. fendants—Appellants. 3 Vi ‘nis Department of Cor- exculpatory materials did not constitute con-

Thus, for all realistic intents and purposes, No. 97-2666. rections, Respondent. stitutional violation affecting conviction; (10)

it was a guarantee that Ramdass would be ; No. CIV A. 2-96CV831 trial court’s determination of state law mat

parole ineligible when the Kayani convic- United States Court of Appeals, ; ters would not be reviewed; (11) court would

tion was formally entered. Fourth Circuit. a not rule that unadjudicated crimes evidence

Further, there was at the time teas was inadmissible in capital murder case, a6

vthone Ah aoe Say Se Norfolk Division. new rule would be created in collateral pro- |

bery guilty verdict and the Domino’s Pizza statute was not unconstitutionally vague.

robbery guilty verdict. Because the Rule Mine operator brought action against

8A:15(a) motions had been denied for the union under Labor Management Relations

Domino’s Pizza robbery verdict, both ver- Act (LMRA) seeking recovery of costs re-

dicts were subject to an identical degree of sulting from unauthorized work stoppage. peatedly core OS at Plaintiff's sales performance nee

uncertainty—either could be set aside only Following entry of summary judgment in covasle oy ee Seratnsilont Se to generate new business and failure to generate

under a Rule 3A:15(b) motion or on appeal. favor of operator on liability issues, the

Yet the majority asserts that the constitu- United States District Court for the South-

344

1. Habeas Corpus ¢319,1 .

A claim is cextiausid” for federl habe-

as corpus review purposes, if either’ the claim

was presénted to the state courts or, though

never presented to the state courts, the claim

if now presented to the state courts would be

found to - be procedurally Getenitel. - ‘=

USCA § 2254(b), i eee

for other judicial constructions and def-

initions.

quate state procedural rule. 2 USCA

§ 2254(b).

3. Criminal Law @1030(1)

Under Virginia law, to preserve an issue

for direct appeal, a timely objection generally

must be made at trial VaSup.Ct Rules,

Rule 5:25. a

‘ Habeas Corpus €287.1 °

With the exception of ineffective assis-

tance of counsel claims, failure to raise ‘a

claim on direct appeal bars consideration of

that claim in subsequent state habeas pro-

5. Habeas Corpus €898(1)

Under Virginia law, claims which are not

presented in an original state habeas petition

will not ordinarily be considered in a subse-

py mye Va.Code 1950, § 8.01-

654, subd. B, par. 2. .

6. Habeas Corpus €>898(1)

Under Virginia law, no writ of habeas

corpus is to be granted on basis of any

allegation facts of which petitioner had

knowledge at time of filing of any previous

habeas petition. Va.Code 1950, § 8.01-654,

subd. B, par. 2.

1, Habeas Corpus ©3862 _

Both operative facts and legal principles

must be presented to state court before claim

may be subject of federal habeus sorpus re

view. 28 US.C.A. § 2254. 5 «=

Come

{. taf 4°

8. Habeas Corpus 404 1+ es se ve get

When « jotitiiar can show both’ dit

for and prejudice resulting from default ‘of a

claim on state procedural grounds, a federal

court may extend habeas corpus review to a

defaulted claim. 2B USCA § 2254. | ie

9. "Habeas Corpus 406.1

To ‘establish | “émnine” -sulfickénit'to ‘allow

federal habeas corpus review of procedurally

defaulted state Claim, a petitioner must show

that some objective factor external to the

defense impeded counsel’s efforts to comply

with the state’s procedural rule. 2 US.CA

§ 2254...

See ‘publication Words and Phrases

for other judicial constructions and def-

initions.

10. Habeas Corpus €409 ;

To establish “prejudice” sufficient to al-

low federal habeas corpus review of proce-

durally defaulted state claim, a petitioner

must show that the error worked to his

actual and substantial disadvantage, not

merely that it created a possibility of-preju-

dice. BUSCA § 224. -

ben exiieaten Wests ond Team

for other judicial constructions and def-

11. Habeas Corpus €401* — a

If a habeas corpus petitioner cannot

show “cause” and “prejudice” sufficient to

excuse a state procedural default of his or

her claims, the claims may still be reviewed

when refusal to do so would result in a

fandamental miscarriage of justice. 28

US.C.A. § 2254. ~

12. Habeas Corpus ¢401

To establish “miscarriage of justice” suf-

ficient to allow federal habeas corpus review

of procedurally barred state claim, a petition-

er must show that a constitutional violation

has probably resulted in the conviction of one

who is actually innocent, or when death sen-

tence is being challenged, petitioner must

show by clear and convincing evidence that

but for a constitutional error no reasonable

juror would find petitioner eligible for the

sa 2USCA§ 224

See: publication Words and Phrases —

eee 8 6 eee: «

17 oe

13. Habeas Corpus 369 7h. “8

Habeas petitioner’s challenge to state

supreme court’s determination, that he was.

parole eligible rendering inapplicable United

States Supreme Court's ruling that noneligi-

bility for parole miust be disclosed to jury

when future dangerousness was issue in capi-

tal murder sentencing proceeding, was proce-

durally barred, due to failure of petitioner to

request reconsideration of state supreme

court’s decision. US.C.A. Const.Amends. 8,

14; BUSCA Se

object to appointment of medical expert who

allegedly would not work with defendant and

put on medical health testimony, did not

for habeas review claim that court-

appointed medical health expert was ineffec-

tive. U.S.C.A Const.Amends. 5, 8, 14; 28

US.C.A. § 2254.

15. Habeas Corpus 364

Failure of defendant, convicted of capital

murder, to raise in state habeas proceedings

claim that his counsel was ineffective for

attempting to prove inconsistent defenses,

federal habeas corpus review of

claim. U.S.C.A. Const.Amends. 5, 6, 8, 14;

28 U.S.C.A. § 2254.

beas corpus claim of lack of expert assistance

by asserting defense of procedural default;

state had failed to assert defense in earlier

state court appeals proceedings, choosing ‘o

address claims on merits. 28 USCA.

§ 2254.

17. United States Magistrates 25

Trial court would deem habeas corpus

point discussed by magistrate judge in report

and recommendation, without objection by

either side, to have not been procedurally

defaulted. 28 US.C-A § 2254. :

18 Habeas Corpus 770

State supreme cunts (haiudnation,

oS eee ae oe

review before approving death

RAMDASS vy. _ANGELONE . - | 345

Cite as 28 OSugp.as 343 (E.D.Va 1998)

bound federal court conducting -habeas re-

view. 28U.S.C.A. § 2254.

19. Habeas Corpus 7165.1

A state court decision that summarily

dismisses a habeas corpus petitioner’s claim

as meritless is an adjudication on the merits

entitled to deference on federal habeas cor-

pus review, under the Antiterrorism and Ef-

fective Death Penalty Act. 28 USCA

§ 2254(d).

20. Habeas Corpus 503.1

State supreme court made “unreason-

able determination of the facts,” allowing for

habeas corpus review of its conclusion that

petitioner convicted of capital murder would

not be subject to compulsory life sentence if

death sentence was not imposed; state su-

preme court applied inconsistent reasoning in

concluding that present offense could be

counted toward determining if defendant had

committed three violent felonies, as required

for lifetime commitment without parole un-

der state statute, even though sentencing in

present case was not yet complete, while

denying applicability of third violent felony

for which he was convicted on grounds that

sentencing had not occurred. 28 US.CA.

§ 2254(b); Va.Code 1950, § 53.1-151, subd.

Bl.

21. Habeas Corpus 498 y

State supreme court unreasonably ap-

plied United States Supreme Court prece-

dent, in upholding death penalty, by claiming

that Supreme Court’s Simmons decision, re-

quiring disclosure to jury asked to evaluate

future dangerousness of fact that defendant

would be sentenced to life imprisonment

without possibility of parole if not sentenced

to death, on grounds that mandatory life

sentence was not required in present case;

state supreme court read state statute pre-

cluding parole in illogical manner. 28

U.S.C.A. § 2254(b). |

22. Criminal Law €641.13(6)

It is not ineffective assistance of counsel

to advise one’s client not to testify. US.CA

Const.Amends. 5, 6, 8, 14. ef

28 FEDERAL SUPPLEMENT,

23. : he eS T +t ae ’

641.186) 2-9) sa

ae ne OSS" ted offense. US.C.A Const. Amends:'5; 6, 8;

- perrpeercdiw with capital murder 14. cto mo}, 8

his attorney failed to 4 =? © testimony 28. Courts €100(1) |

_ Tegarding ballistic matters given by . " Rule’ established

witness qualified only as firearms identifica- ex parte

24. Criminal Law €641.13(7) ,

Defendant charged with capital | \ 4

did not receive ineffective _—

assistance

sel who did not object when of coun-

sentenced to death. U.S

5, 6,8,14. ~ C.A. Const.Amends.

26. Criminal Law €641.13(7)

he was .

ating under mental defect when he commit a AS 28 U.S.C.A.

» :_ RAMDASS._y,.;ANGELONE ® 347

Cite as 28 F.Supp.2d 343 (E.D.Va. 1998)

set, and recommended that the motion to dismiss

Virginia capital murder sentencing stat- be“denied and that Petitioner's case be re-

ute was not unconstitutionally vague, despite manded for resentencing." °°)!

use ‘of term . “future dangerousness.” By copy of the-R & R, each party was

US.C.A. Const.Amend. . 14; Va.Code :1950, advised of his right to file written objections

§ 182-18. nt eee or! os «to the fineings and recommendations made

: at piteemep f a'.'4 2.2 Oh 3% by the Magistrate Judge. On March 30,

PO Ne Se tg 1998, this Court received “Petitioner's Objec-

Katherine P, Baldwin, Assistant Attorney tions to Magistrate Judge's Report and Ree-

General, Office of the Attorney Gener®l, CAF” —ommendation’. ane “Respondent's Objections

ital Habeas Litigation Section, Richmond, to the Magistrate Judge’s Report and Ree:

VA, for Ronald J. Angelone. ‘ - gmmendation.” On April 13, 1998, both par-

John M. Ryan and Nash F. Bilisoly, Van- ties filed respective replies to the objections.

deventer, Black, Meredith and Martin, LLP, - With some exceptions, Petitioner objects to

Norfolk, VA, Michele J. Brace, Robert Ed- the Magistrate Judge’s recommendations to

ward Lee, Jr.; Mark E. Olive, Virginia Capi- deny certain claims on the basis of procedur-

tal Representation Resource Center, Rich- al default. Of the claims the Magistrate

mond, VA, for Bobby Lee Ramdass. Judge addressed .on the merits, Petitioner

| 4 si does not contest the ultimate recommenda-

OPINION AND FINAL ORDER_ tion to order Petitioner’s resentencing, how-

' nee ‘ 4 ever, he does object to the recommendations

JACKSON, District Judge. to deny the remaining claims on the merits.

In January, 1998, Petitioner was convicted Further, Petitioner maintains that he is enti-

in the Circuit Court of Fairfax County, Virgi- fled to conduct discovery and present evi-

nia for the September, 1992 murder of Mo- dence on his claims which were denied on the

hammad Z. Kayani, a convenience store merits. Respondent disagrees with the stan-

clerk. Pursuant to the jury's recommenda- dard the Magistrate Judge utilized in con-

tion, on April 2, 1993, the court sentenced cluding that certain claims were not proce-

Petitioner to death. Subsequently, Petition- durally defaulted and the ‘recommendations

er exercised his state appeals to no avail. On that certain claims were not procedurally

March 11, 1997, Petitioner filed an amended defaulted. Additionally, Respondent objects

petition for a federal writ of habeas corpus, to the ultimate recomme

t to 28 U.S.C. § 2254,' alleging viola- Petitioner's case for resentencing. Both par-

tions of federal constitutional rights during ties object to the standard of review the

his conviction and sentencing. This matter Magistrate Judge applied when evaluating

comes before the Court on Respondent’s claims on the merits.

April 28, 1997 motion to dismiss the petition. Pursuant to Rule 72(b) of the Federal

On June 3, 1997, Petitioner filed a response Rules of Civil Procedure, the Court, having

to Respondent's motion to dismiss. On June reviewed the record in its entirety, shall

26, 1997, Respondent filed a reply t Peti- make a de novo determination of those por-

tioner’s response. | “9° tions “of the Magistrate Judge’s R & R to

Pursuant to the provisions of 28 U.S.C. which the parties specifically objected. The

§ 636(bX1B) and (C), Rule 72(b) of the Court may accept, reject, or modify, in whole

Federal Rules of Civil Procedure, and Rule or in part, the recommendation of the Magis-

99 of the Rules of the United States District trate Judge, or recommit the matter to him

Court for the Eastern District of Virginia, with instructions. 28 U.S.C. §. 636(b)(1).

the matter was referred to a United States

Magistrate Judge for Report’and Recom- — 1. FACTS AND PROCEDURAL

mendation (“R & R”). On February 27, HISTORY

1998, the Magistrate Judge filed his R & R, “The R & R contains a detailed statement

He found merit in one ground in the petition of the facts surrounding the crime, Petition-

1. On February 14, 1997, Petitioner filed his ini- _tial petition.

33. Homicide 351, 357(6)

348 * 28 FEDERAL SUPPLEMENT. @..

° . “ ; ‘ fA Si S>- "woe tS 4 2d |

ex's’ conviction end: contending, end exlies: : Singh stated

precise moment of the shooting,

eee The Sohutnen siete aicaen

ae oe cm ng go off, clicked it again and it went off.”. Ud.)

, — ‘ history are as follows. testified that he returned from a back room

a ee | a Ramirez saw Petitioner laugh-

P ) as he stood )

m . night ¢ Synte 1, 1992, Tr. at 145.4 over Kayani’s body. (1/27/93

Petitioner and Darrell ‘Wilson, ~oe O’Connor ‘aad an Singh, and

tah htt us ota open, moet. sa Sin a ae

with three other , Shane Singh; Simones ran — what a or

in yo ren Ane | 1 (Ud at 146.) H ioner was “click-

Mae oe ce: Ramirez, after ing the gun at the people on the floor” and

abandoning ha + maytag told Ramirez to “[sJhut up or I'll put one in

oe ae | Fairfax aoe: _ (Id.) One of the customers also heard

t rant ] LI t i lick of the * - P

including Petitioner, decided that they would (V/27/98 ‘Tr. at 125, 129-30.) le aes

<> Sanne & 9 S-Sierts Gave os Rah When they got in the car, Ramirez |

vh car, heard

Near one o'clock on the morning of ate bn Aer a

tember 2, 198, the five man entared the 7 After the men divided the eters proceed

*,% - -w ,

se A nae a > aaa ten Sees tt

drew” oo yani, a clerk who was “{dJon’t tell anybody about this [o}r I'll kill

lane ang register. Wilson, who also you and I'll kill your whole family.” (1/27/93

displayed his pistol, ordered all the eustom- Tr. at 146-47.)

hg ay waged heeded Singh, a co-owner of the gun with Petition-

The other three men, were unarmed, testified fame —

orn ee ee eat 2 ytd nal g-<rhnenahog

lottery tickets from the store’s stock. ~mepage yatta

a Singh, standing behind Petitioner, (Jd. at 250-51.) Mason further testified that

- iene chest Sayed fe Sp tendon when the muzzle was pointed up, the car-

tenet get the weapon to fire. tridges slid back closer to the firing pin, and

- at 211-12.) Testifying about the the gun could be fired. (/d at 251.) ae

2. For this crime, Singh had plead guilty to ‘employee Eleven

Psa mur- 3. Another '

ont de a. ¢ tends ee oa cannes pt Seni pao he

Se ee Leases te Gio sasend dogs. pueda agian ig

testified three life sentences | Si

‘years. (1/27/93 Tr. 202.) ‘In exchange 4. Later, Ramirez heard Petitioner | ‘

testimony, charges for other robberies in which _< shot Kayani because he ae hes Baha

(1/2793 Tr. at 147.) | asl

ee SPE te ee Sa >

2 - (2 RAMDASS '¥.! ANGELONE & 349

Cite as 28 F.Supp.2d 343 (E.D.Va. 1998)

revealed that powder

found ori Kayani’s head. (/d at 102.)

Based on the evidence, the jury convicted

Petitioner of capital murder and the use of a.

firearm in the commission of a felony. The

case proceeded to the capital sentencing

phase. The Commonwealth, in seeking the

death penalty, relied solely upon the “con-

tinuing serious threat to society” condition,

also known as “future dangerousness.” In

support of its position, the Commonwealth

introduced evidence of Petitioner’s use of a

firearm and participation in the robbery of a

Pizza Hut on August 25, 1992; robbery on

August 29, 1992, of a hotel night clerk, who

was physically beaten by Petitioner and

threatened with a gun during the robbery;

use of a firearm and robbery of a Domino's

tioner need not be sentenced to death on the

basis of future dangerousness because he

already required to serve at least

The

uit

alt

fits

PyEeeis

&_°*

that he won’t commit crimes of violence in

the future.” (1/29/93 Tr. 98.) = « a

* ‘Trial counsel informed the jury of Petition-

er’s extensive juvenile record. Beginning in

1985, Petitioner came before the Court for a

purse snatching, for which he received proba-

tion, (1/29/93 Tr. at 198-99); theft.of a moped

and a burglary, for which he was sentenced

to a juvenile facility, (1/29/93 Tr. at 200);

being a juvenile escapee, (1/29/93 Tr. at 201);

and robbery as a juvenile, for which he re-

ceived an adult sentence to Southampton

prison, (1/29/93 Tr. at 17-18, 202). . The jury

also learned that Petitioner acquired his first

gun at age thirteen or fourteen, while he was

selling drugs, (1/29/93 Tr. at 149-51); that he

was in possession of a loaded gun when he

was arrested, as a juvenile, and charged with

robbery, (1/29/93 Tr. at 24); and that he

violated his parole, which began on May 21,

1992, by acquiring a gun on July 4, 1992, less

than sixty days later, (1/29/93 Tr. at 85-86,

202). .

Furthermore, the defense presented evi-

dence of a bleak, abusive, unstructured child-

hood. Petitioner was physically and emo-

tionally abused and raised in conditions of

severe deprivation. There was no positive

guidance.

an early age. (Jd at 217.) She was working

as a topless -daricer when Petitioner was

born. (Id. at 219.) : She acknowledged being

convicted of writing a bad check

Reg

350 e so vaneundh::daiteaieabinsieies

tee ss die tes: a! oie “8S i aggee). 4 if as 4.2

described etitioner was physically the: jury verdict offense of capital

abused by a boyfriend and how she taught ie “ dipa 5

petitioner to defend himself. She admitted Beet, aes as MA a

ne Out an het On September 2, 1 Petitioner wa

Jennifer Joffe, a Virginia probation/parole dank ieitaned tanta coteh eaten

officer, was called by the defense. She had at a 7-Eleven. convenience store on Buelah

Jara se a ation report following Peti- Street in Fairfax County, Virginia’ He was

~ conviction for robbery. (/d. at arrested on September 11, 1992, for an earli-

ey Joffe presen ted evidence of Petition- & Tobbery, together with other defendants,

i On ucasenne | o- ye

edged none of the counseling reports 1992, Petitioner was indicted by a Fairfax

neal on ne ane »County grand jury on capital murder, armed

of pgcanns 0 serious mental problems. robbery, aiid use of a ftrearm in the commis:

oe) See eee oe sion of arobbery. 5

sessment 0 etitioner as immature, impul- Counsel was appoi in ti 7

ion appointed in timely fashion,

ete thy tage (id. at 127.) In ree On November 2, 1992, the trial court denied

spo fe Spttion “Ye Oe tees Petitioner’s request to make an ex’ parte

a a she responded, showing of need for expert assistance.

wal -) ; (11/2/92 Tr. 20-32.) On December 8, 1992,

_Pettoner didnot cal the court-appointed the trial court denied Petitioner's motion for

health xpart to testify as to Petiicnar’s @ physical exam concluding that there was a

a L__ or mitigating circumstances. per gee cing oo ye made

iin m eae, the court-appointed ex- eee for an exam. (12/8/92 Tr. at 6.) Counsel

. ‘that there were no mitigating proffered that he needed the exam to

circumatences in Petitioner's case. determine whether Petitioner suffered from

Finally, though Petitioner did not testify iz a reflexive disorder. (Jd. at 7-8.) Next, the

- : testify in trial court denied Petitioner’s request

penta Petitioner did testify in the appointment of: an expert rata oo

tencing phase. (1/29/93 Tr. 132-216.) Tl ceatis 0 tach deseat ie te ae

_ i i ley ene sae team. (Jd at 22) Next, the trial court

_ during the penalty phase of the capital declined to order the Commonwealth to turn

auuter pesmi, Gay GbeRNE 0 ae over to’ Petitioner statements Petitioner

re nh coy ag wom “{I}f the Claimed were exculpatory. (/d at 44.)

endant is given life, is there a possibility The matter ci anuary

pboey- ttn au mao 26, 1998. teeta oe aatnaitees :

death, COS . . court re- dire and selection. At Pettioame, ter

aoe dee lara tes cae re persis ay Mnan jo ines ge mga

eon: in this case, you should im- bery charge which was accepted a

ee t as you feel is just following the normal colloquy. ~ Ae

ee and within the instruc- the request of the Commonwealth Attorney seer

bye You are not to concern and over the objection of defense counsel, a

pon (/29/88 Tr. at 281) The Court did rp Seti wheres ho

ore sameraptomenes | ysingn novel ys At the whe a0: 7 or ;

death for Petitioner. On Apri Ne ppt tear ate fs + veri

sattaaien tin to Seah tetiel << a a

conformity with Petitioner was sentenced to four years in the

“ ‘

~~ eaaniannnenen ee ee ee

guilty .with respect to :Count Il, robbery,

finding on the record that Petitioner’s plea of

guilty was freely and voluntarily given. The

heard evidence with regard to punishment, on

the capital murder charge, and following ar-

gument and i ion by the court, re-

turned a verdict of death. NE Fe

In anticipation of the preparation of the

presentence report, the matter was set over

for further proceedings on March 3, 1993.

Sentencing was continued from that date,

however, until April 2, 1998, at which time

the court imposed judgment upon Petitioner,

sentencing him to death in conformity with

the jury verdict for the offense of capital

murder; four years in the penitentiary, in

conformity with the jury verdict for use of a

firearm in the commission of a felony; and

life for the robbery, incident to Petitioner’s

plea of guilty. ,

Trial counsel pursued a direct appeal on

behalf of Petitioner, assigning the following

errors:

protected by the Sixth and Fourteenth

Amendments of The United States Consti-

tution and the Constitution of Virginia.

2. The Trial Court erred, and denied the

t his Fifth, Sixth and Fourteenth

Amendment rights, and his Rights protect-

ed by The Virginia Constitution through

the denial of his motion for discovery of co-

defendant polygraph questions and an-

approved by the Virginia Supreme Court.

5. -‘The Trial Court erred in denying the

GeeneGingh. SS

.°6. The Trial Court erred in admitting

evidence of the Defendant’s unadjudicated

misconduct in . violation of the United

States and Virginia Constitutions. °

“= 9, The Trial Court erred in denying the

‘Defendant’s proffered sentencing jury in-

struction “B-S”: which instructed the jury

that they must ‘all agree that the Defen-

~ “dant would be a future danger.

| @- ‘The Trial Court erred, and denied De-

fendant his rights protected by the Virgi-

nia and United States Constitutions 5th

and 14th Amendment Rights, by denying

Defendant’s ‘proffered sentencing jury in-

struction “E-S” which instructed they jury

as to the standard of proof required to be

convinced of the unadjudicated misconduct

of the Defendant.

9. The Trial Court erred in refusing to

respond to a jury. question, during the

sentencing stage of the trial, that Defen-

dant would not be eligible for parole upon

his conviction of capital murder in the in-

stant matter in violation of § 192-2644 of

the Virginia Code and the Eighth and

Fourteenth Amendments to the United

States Constitution.

10. The Trial Court erred in denying De-

fendant the right to raise his inability to

make parole upon conviction of the capital

murder in the instant case.

11. The imposition of the death penalty

by electrocution is cruel and unusual pun-

ishment, in violation of the Virginia Consti-

tution and the Eighth Amendment of the

United States Constitution and the Trial

Court erred in finding to the contrary.

12. The Trial Court erred in withholding

a finding of guilt on the underlying rob-

bery charge, and further erred, and denied

the Defendant’s 5th and 14th Amendment

rights by refusing to sentence the Defen-

dant without a presentencing report de-

spite its waiver by Defendant and his coun-

sel and the fact that the Defendant had

been incarcerated the entire period of time

since the preparation of the prior presen-

18. : The Trial Court erred in denying the

ical doctors, and private investigators. -

352 . ee

2 @ .¥ TH 2 ot SU Ret

14. The Trial Court erred in denying the

Defendant a medical expert to perform a

competent physical examination to ascer-

tain his physical disabilities. .

15. The Court erred in denying the De-

fendant discovery regarding future dan-

gerousness priortotrial .. . .

16. The Trial Court erred in denying De-

fendant’s Motion to Dismiss on the basis

that the Virginia Death Penalty Statute is

17. The Trial Court erred in denying de-

fendant’s motion to dismiss on the basis of

the denial of due process under the United

States and Virginia Constitutions. _—

18. The Trial Court erred in refusing to

dismiss a juror who was personally ac-

quainted with one of the Commonwealth

(police) witnesses, and an additional juror

who had preconceived notions regarding

the brutality of the crime.

19. The Trial Court erred and violated

his Fifth, Eighth and Fourteenth Amend-

ment Rights in refusing to permit inquiry

into whether the jurors held the belief that

the Defendant would be executed if the

jury were to impose the death sentence.

20. The Trial Court erred in denying De-

fendant the opportunity to voir dire the

jury regarding specific mitigation circum-

stances about which they would be gener-

ally instructed, and further erred in deny-

ing Defendant’s motion to exclude those

jurors that were unable to consider specific

mitigating circumstances in sentencing.

21. The Trial Court erred in denying the

Defendant’s motion for in-camera requests

for expert witnesses in violation. of his

Fourth. Fifth, Sixth and Fourteenth

Amendment rights of the United States

Constitution and rights protected by the

Virginia Constitution:

22. The Trial Court erred in denying De-

fendant’s motion for a private investigator

to aid the defense in the preparation of

trial in violation of his Fifth and Four-

teenth Amendment Rights and his rights

protected by the Virginia Constitution.

23. The Trial Court erred in denying the

Defendant’s motion that it review evidence

to determine whether evidence was or was

not exculpatory rather than leaving such

“

determination to the Commonwealth’ ‘At

torney-in violation of his Sixth and Four-

the lack of fingerpririts left by Mr. Ra-

mirez in the 7-11; as to the specific loca-

tion of Mr. Ramirez on dates preceding

this incident; in denying the Defendant’s

probing into the background of Common-

wealth witness Mr. Ramirez, and in deny-

ing the defendant the opportunity to exam-

other offenses in which the witnesses were

involved thereby denying him right of con-

frontation in violation of the Sixth Amend-

ment of the Constitution and rights pro-

tected by the Virginia Constitution.

On November 5, 1993, the conviction was

affirmed. Ramdass v. Commonwealth, 246

Va. 413, 437 S.E.2d 566 (Va.1993). The court

noted that Assignments 7, 17, 18, 19, 20, and

24 were not briefed and concluded that those

issues had been waived. With regard to the

ruled on the issues on the merits. —

Following denial of the appeal, a petition

for certiorari was filed in the United States

Court’s refusal to respond to [the] jury inqui-

ry as to Defendant’s parole status violates

the Sixth, Eighth, and Fourteenth Amend-

ments of the U.S. Constitution.” .

There was no action for several months,

but on June. 17,.-1994, the United States

Supreme Court decided the case of Simmons

v. South Carolina, 512 US. 154, 114 :8.Ct.

2187, 129 L.Ed.2d 133 (1994), and ruled that

Ramdass v. Virginio, 512 US. 1217, 114

S.Ct. 2701, 129 L.Ed.2d 830 (1994).

again a petition for writ of certioran

ntl in the Supreme Court of the United

On May 11, 1996, counsel was appesetes f

pursue a petition for habeas corpus

the courts of the Commonwealth On Au-

dence (in the form of photos, the

scrapey report, unadjudicated mil

conduct, :and a co-defendants sen-

tence); and .improper evidence re

garding parole.

and the denial of an investigator.

4. The Virginia Supreme Court propor:

tionality review was inadequate.

denied an

On January 19, 1996, the court

ex parte motion for expert assistance and an

investigato r. On March 18, 1996, the court

denied the habeas petition without an eviden-

On April 19, 1996, counsel filed a petition

for rehearing in the state habeas proceeding,

alleging as grounds for the rehearing that

Petitioner was denied the effective assistance

of counsel (for a variety of reasons previously

presented), that the prosecution engaged

misconduct prejudicial to Petitioner, and that

the trial court denied Petitioner's constitu-

tional rights in numerous respects. Some 1s-

1996. bg ote"

Circuit Court of Fairfax County set

A 4. s execution for August 28, 1996.

On June 25, 1996, Petitioner filed a motion to

354 @ orn SUPPLEMENT, ss sea

:* of! &

the Virginia Supreme Court on July 17, 1996.

On August 14, 1996, incident to plans to

present a federal habeas petition, Petitioner

moved for a stay of execution and for leave to

proceed in forma pauperis, and for appoint

ment of counsel in federal court. =

On August 15, 1996, the execution was

stayed. Thereafter, on September 11, 1996,

counsel was appointed for the purpose of

filing the current action.

IL CLAIMS PRESENTED

as grounds for federal habeas relief.

A. The trial court’s failure to allow consid-

eration of Petitioner's parole ineligibility

violated his mghts under the Eighth and

Fourteenth amendments (The Simmons

claim).

B. Petitioner was denied his constitutional

right to the assistance of a mental health

expert in violation of the Fifth, Eighth

and Fourteenth amendments.

C. Petitioner was. denied effective assis-

tance of counsel in violation of his rights

under the Fifth, Sixth, Eighth and Four-

teenth amendments.

1. Trial counsel’s trial strategy was either

nonexistent or internally inconsistent.

a. Petitioner was unreasonably advised

not to testify.

b. Trial counsel failed to confront the

pro’ ecution’s argument that the gun

was fired twice and in an upward posi-

tion, thus establishing the requisite

intent.

c. Trial counsel failed to challenge the

credentials and testimony of the pros-

ecution’s medical examiner.

d. Trial counsel failed to cross examine

the prosecution’s “firearms identifica-

tion” expert.

e. Trial counsel failed to obtain expert

assistance. '

2. Trial counsel failed to object to co-

defendant's testimony about his life sen-

3.' Trial counsel failed to establish Peti-

tioner’s parole ineligibility.

E. Petitioner was arbitrarily and unreason-

ments to make an ez parte showing of

need for expert assistance.

F. The trial court’s refusal to allow Peti-

tioner exculpatory statements, the trial

court’s refusal to review such statements

tn camera and the prosecutor's improp-

er refusal to provide exculpatory state-

ments denied Petitioner his Fifth, Sixth

and Fourteenth amendment rights.

G. The Virginia death penalty statute on its

face, and as applied, violates the Sixth,

Eighth and Fourteenth amendments.

H. Petitioner was denied his right to con-

frontation in violation of the Sixth

amendment.

I. The trial court violated Petitioner's con-

stitutional rights by admitting unadjudi-

J. The Virginia Supreme Court failed to

perform an adequate review of Petition-

ers death sentence for proportionality

and for passion, prejudice or other arbi-

trary factors.

K. Virginia's capital murder sentencing

statute is unconstitutional. capa

Il. PROCEDURAL DEFAULT

[1] Title 28 U.S.C. § 2254(b) requires ex-

haustion of claims before presentment to fed-

eral courts. -A claim is exhausted if either

the claim was presented to the state courts

or, though never presented to the _ state

courts, the claim if now presented to the

state courts would be found to be procedural-

ly defaulted. Coleman v. Thompson, 501

US. 722, 111 S.Ct 2546, 115 L.Ed2d 640

(1991). . at as : |

Magistrate Judge employed for determining

when a claim has’ been procedurally default-

nia state procedural rule. Coleman, 501 U.S.

at 750, 111 S.Ct. 2546. Under Virginia law,

to preserve an issue for direct appeal, a

timely objection generally must be made at

trial. Va. S.Ct. R. 5:25; Coppola v. Warden

of Virginia State Penitentiary, 222 Va. 369,

282 S.E2d 10 (Va.l981). Further, excepting

ineffective assistance of counsel claims which

first be presented on collateral review,

failure to raise a claim on direct appeal bars

consideration of that claim in subsequent

state habeas proceedings. Walker v. Mitch-

ell, 224 Va 568, 299 SE2d 698, 695 (Va.

Cite as 28 F.Supp.2d 343 (E.D.Va |

claim is barred from federal review. Mat-

thews v. Evatt, 105 F.3d 907, 911 (4th Cir.

1997). Accordingly, Respondent's objection

to the standard the Magistrate Judge used to

for determinations of procedural default is

SUSTAINED. |

ply with the state's procedural rule.” _Mur-

ray v. Carrier, 477 U.S. 478,488, 106 S.Ct

Cite as 28 F.Supp.2d 343 (E.D.Va 1998)

ments; thus, the argument would now be C. Petitioner was denied effective assis-

* Ae gt ae 2 TB:

2639, 91 L.Ed.2d 397 (1986). With respect to courts and, therefore, may not now be

procedurally defaulted pursuant to Va Code tance of counsel in violation of his ——

§ 8.01-654(B)(2)." Accordingly, the argu- _ rights under the Fifth, Sixth, Eighth

” a petitioner must show that the sidered by this Court.

error worked to his “actual and substantial At no point has Respondent directed

disadvantage,” not merely that it created a Court’s attention to any new arguments a a : 2-0 RNS

“possibility of prejudice.” Id. at 494, 106 which should have been raised in state e es sme age pram po wa 1. Trial counsel's trial strategy was non-

S.Ct. 2639 (emphasis in original), quoting court. ‘In his response to the motion to | he ort - pm - . , existent or internally inconsistent «=.

United States v. Frady, 456 U.S. 152, 170, dismiss, Petitioner identified two purported- me JS ~erap) _— tmmons ~~ [15] Petitioner’s claim here ‘is two-fold.

102 S.Ct. 1584, 71 L.Bi2d 816 (1982). Sec- ly new arguments: (1) on remand from | ar RAS ae First, Petitioner claims that trial counsef's

“prejudice” sufficient to excuse a procedural Supreme Court exceeded its constitutional — B. Petitioner was denied his constitu- defenses was inconsistent.’ Second, Petition-

default, his claims may still be reviewed authority and determined Petitioner’s parole a tional right to the assistance of a er claims that trial counsel's strategy was

where refusal to do so would result in a eligibility status and (2) on remand from the * mental health expert in violation of ineffective because they failed in four in-

“fundamental. miscarriage of justice.” United States Supreme Court, the Virginia the Fifth, Eighth and Fourteenth stances to produce any evidence on Petition-

Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, Supreme Court’s decision that Petitioner | 3 amendments. ’_ @r’s intent. The Magistrate Judge deter-

130 L.Ed2d 808 (1995); Coleman, 501 U.S. was parole eligible was arbitrary. Petition- < = ' ce mined that any claim of ineffective assistance

at 750, 111 S.Ct. 2546. To meet the miscar- er argued that neither claim was procedural- 4 Petitioner claims that he was denied the of counsel based on inadequate trial strategy

riage of justice exception, the petitioner must defaulted because Petitioner could not e constitutional right, pursuant to Ake v. Okla- was not presented to the state courts and,

for the death penalty ....” 5 Sawyer v. Whit-

ley, 505 U.S. 383, 348, 112 S.Ct. 2514, 120

L.Ed.2d 269 (1992).

A The trial court’s failure to allow con-

sideration of Petitioner’s parole ineli-

Se eae

homa, 470 US. 68, 105 S.Ct. 1087, &

L.Ed.2d 53 (1985), to the assistance of a

mental health expert. The Magistrate Judge

determined that the claim was procedurally

defaulted because it was neither presented

on direct appeal nor in the state habeas

petition. (R & R 34-35.) Petitioner objects

arguing that the language in the state habeas

petition was a dual claim which clearly ar-

gueci a violation of Ake in addition <o ineffec-

tive assistance of counsel for failure to secure

a mental health expert.

[14] The Court finds that the Ake claim

has been procedurally defaulted because it

accordingly, was procedurally defaulted. (R

& R 35.) Of the four instances in which

Petitioner claims intent evidence should have

been produced, the Magistrate Judge evalu-

two were procedurally defaulted: (1) that

Petitioner was unreasonably advised not to

testify and (2) that, as to the location of the

bullet, trial counsel was ineffective in failing

to obtain experts to assist in the defense of

the case.’ (R & RK 35-36.) Petitioner objects

arguing that the trial strategy claim is a

“convenient umbrella” for the anderlying

sub-claims which were all presented to the

state courts. Petitioner concludes, therefore,

that both the trial strategy claim and the

underlying sub-claims regarding intent evi-

dence are preserved. With respect to any

remaining ineffectiveness claims for failing to

trate Judge found were not procedurally de-

the sentencing jury was entitled to know second request for review. Pursuant to | ny. Petitioner did not, however, explicitly faulted, Respondent objects.

Petitioner's parole eligibility status was pre- Slayton, 215 Va 27, 205 S.E.2d 680, Petition- | argue that, the court-appointed mental health © The Court finds that the argument that

sented both on direct appeal and in the state er could have presented the arguments to the expert was ineffective. Accordingly, Peti- the defenses were inconsistent is procedural-

habeas proceeding. “(R & R 33-84.) Re- Virginia Supreme Court in his initial habeas tioner’s objection is OVERRULED. The ly defaulted. In the state ‘habeas petition,

spondent objects contending that the Magis- petition because the issues could not have Ake ineffective mental health expert claim trial counsel was not charged with being

trate Judge considered legal arguments been raised at trial or on direct appeal. Peti- . will not be addressed on the merits. ineffective for attempting to prove seemingly

5. In his this Court whether Congress's intention in writ- ‘argue: “The bullet did not come from Defen establishing the requisite intent, (2) trial counsel

that the “actual innocence of the death penalty” ing § 2264(a) was to completely eliminate the dant's gun but if you find that it did, then Defen- failed to challenge the credentials and testimony

doctrine no longer provides a gateway for peti- “actual innocence” exception in capital cases or dant did not intentionally shoot the victim but of the prosecution's medical examiner, (3) trial

Genie» to havo Ghaty Gotestand ites seston qanly 6 ately tak Ae nl ee did so accidentally counsel failed to cross examine the prosecution's

on habeas. In support position, respon- . “cause” under the cause and prejudice excep- : firearms identification expert and (4) trial coun-

dent pointed to 28 U.S.C. § 2264(a). Respon- tion. Second, because this Court has previously . ad Wel, nial eal cncladmns Ge a.

dent did not pursue this argument in his objec- found that Virginia is not an “opt-in” state, the su that (1) trial counsel failed, to 53.) ee ere

tions and, for two (2) reasons, the Court offersno (Mem: Op. and Order, Dec. 6, 1996.), § 2264(a) confront the on's argument that the

= GQueceunse

inconsistent defenses. Accordingly, Petition-

er’s objection is OVERRULED. .

[16] With respect to the claim’ of inefffec-

dence, the Court finds that neither the claim

Petitioner explicitly claimed in the state ha-

beas petition that trial counsel was ineffec-

tive for not producing intent evidence. As to

the claim of unreasonable advice not to testi-

fy, Petitioner clearly raised the issue in the

state habeas petition and, additionally, in his

motion to dismiss, Respondent addressed the

claim on its merits. Finally, in reviewing

Respondent’s motion to dismiss, the Court

finds that the only portion of the argument

regarding expert assistance which Respon-

dent claimed was procedurally defaulted was

quently, the defense of procedural default

was waived, Trest v. Cain, 522 U.S. 87, ——,

118 S.Ct. 478, 480, 1389 L.Ed2d 444 (1997),

and cannot now be raised on objection to the

R & R. Accordingly, Petitioner’s objection is

SUSTAINED and Respondent’s objection is

OVERRULED.

2. Trial counsel failed to object to a co-

defendant's testimony about his life

sentence.

[17] In his motion to dismiss, Respondent

ly defaulted. In the R & R, the Magistrate

Judge evaluated this claim upon its merits,

(R & R 53), implicitly concluding that the

claim was not procedurally defaulted. Nei-

ther party objected. Accordingly, the Court

finds that the claim is not procedurally de-

faulted and will address the claim on its

merits.

8. Trial counsel failed to establish Peti-

The Magistrate Judge determined that tri-

al counsel's failure to establish parole ineligi-

the trial was procedurally defaulted, but that

failure to challenge the determination that

Petitioner was not ineligible for parole was

not defaulted because it’ was

related to the Simmons claim. (R & R 36.)

state proceedings and further, in light of the

fact that the Fourth Circuit vacated Mackall

v. Murray, 109 F.3d 957 (4th Cir.1997) in

Matkall-v. Angelone, 131 F.3d 442 (4th Cir.

1997) (en banc), does not object to the Magis-

trate Judge’s determinations. Accordingly,

Respondent’s objection is SUSTAINED.

Neither argument will be addressed on its

merits.

4. Trial counsel failed to conduct ade-

On page 37 of the R & R, the Magistrate

;

‘merits.

359

Cite as 28 F.Supp.2d 343 (E.D.Va. 1998)

faulted address its defaulted. In the R & R, the Magistrate

Pe, Meck oo de Gana wa? D (R & R 68,), implicitly ‘concluding that the

6 Trial counsel failed to adequately pre- isi was not procedurally defaulted. ,Nei-

pare for the penalty phase... ther ~party “objected to the -Magistrate

This claim encompasses two (2) arguments: Judge’s conclusion. Accordingly, the Court

trial counsel was. ineffective for. failing to finds that the claim is not procedurally de-

object to the court-appointed mental health fated and will address the claim on its

expert and trial counsel was ineffective for a ee

failing to present expert mitigating evidence.

The Magistrate Judge determined that the

former argument was procedurally defaulted,

F. The refusal to allow Petitioner exeul-

latter i temer ° refusal to re-

preserved. (R & R 59.) . Peti- patory sta 's, the !

tae ood raising two arguments. First, view such statements in camera and

Petitioner urges that the Magistrate Judge’s the prosecutor’s improper refusal to

was preserved. (R & R 34.) Second, Peti- th sment rights.

tioner claims that Respondent waived proce- — | io

dural default. Neither party objected to the Magistrate

The Court finds that the claim is not pro- Judge's conclusion that, with the exception of

cedurally defaulted. The ineffective assis- the assertion of the right to an t™ camera

tance of counsel claim was clearly raised in hearing, this claim was procedurally default-

the state habeas where Petitioner 4 (R & R 31-33.) ‘Accordingly, the Court

claimed that trial counsel failed to object to adopts the findings made by the Magistrate

the court-appointment mental health expert Judge. The preserved claim will be re-

= not work with the defense and viewed on the merits.

> death penalty statute on

SUSTAINED. Both arguments will be ad- G. ahs gre - — Jem

Sixth, Eighth and Fourteenth amend-

D. ney eal Spree open oraete mente | |

deprived o c expert ‘ .

sesame te coaiaiien of the Fifth, Sixth, The Magistrate Judge comand G8

In his motion to dismiss, Respondent did ed. (R & R 37.) Respondent chjeue ergy

not argue that this claim was procedurally ing that some of the arguments

(R & R 62,), implicitly concluding that the state courts. Turning to Respondent's mem-

Fifth, Sixth, : the

‘and Fourteenth the jury recommends death; @ tat ‘

amendments pan alan aggroers *vileness” aggravating factor is vague; St)

showing of need for expert ascistance. that death by legal injection is om

» dismiss, Respondent.did unusual; (iv) the sentencing statute

that

to . . = . .

: af

360 @ * HLL suPrLemene, 1s es

aside if a court finds “good cause;” and (v)

et Ge eeltentng ctateto iieny Gir. Sate.

say in the post-sentence report. -

On direct appeal, Petitioner argued (1) that

death by electrocution is cruel and unusual

and (2) that the Virginia death penalty stat-

ute is unconstitutional because “future dan-

gerousness” is not meaningfully defined and

no jury instruction is required in consider-

ation of mitigating evidence. In his state

habeas petition, Petitioner did not challenge

the ‘constitutionality of the death penalty

statute. Accordingly, Respondent's objection

is SUSTAINED.’ Those particular argu-

ments will riot be considered by this Cout,

bat any remndining afguments will be evaluat

ed on their merits.

H. Petitioner was denied his right to con-

frontation in violation of the Sixth

amendment. |

In his motion to dsmis, Reapondet di

consideration of unadjudicated misconduct.

In the state habeas proceeding, Petitioner

claimed that trial counse) was ineffective for

of prior unadjudicated misconduct. Further,

habeas counsel alleged that the trial court

erred in permitting evidence of unadjudicat-

ed prior misconduct even without an objec-

tion to such evidence.’ Accordingly, Respon-

dent's objection is OVERRULED. yah

4. The Virginia Supreme Court failed to

_ perform an adequate review of Peti-

tioner’s death sentence for proportion-

ality and for passion, prejudice or oth-

er arbitrary factors.

{18} The Magistrate Judge determined

that the issue of the sufficiency of the Virgi-

nia Supreme Court’s proportionality review

was procedurally defaulted, but that the is-

sue of whether Petitioner’s sentence was

imposed under the influence of passion,

prejudice or any other arbitrary factor or

disproportionate was not procedurally de-

faulted. (R & R 33, 73.) Petitioner objects

to the former conclusion. Senpeotont ob

jects to the latter.

Va.Code § 17-110.1(C) mandates review of

death sentences for proportionality and for

passion, prejudice or arbitrariness, in addi-

tion to consideration of any errors alleged by

a defendant. On direct appeal, Petitioner did

not argue that either of these situations ap-

plied in his case. On direct review, the

Virginia Supreme Court determined that Pe-

7 . J. RAMDASS 5. ANGELOGD , 361

.Va.

is SUSTAINED. Neither argument will be

considered on its merits.

K. Virginia’s capital murder sentencing

statute is unconstitutional.

In his motion to dismiss, Respondent did

Judge evaluated this claim upon its merits,

(R & R 77.), thereby implicitly concluding

that the claim was not procedurally default-

ed. Neither party objected to the Magis-

trate Judge’s conclusion. Accordingly, the

Court finds that the claim is not procedurally

defaulted and will address the claim on its

merits.

IV. CLAIMS REVIEWED

ON THE MERITS

The Anti-terrorism and Effective Death

Penalty Act (“AEDPA”) is generally applica-

ble to Petitioner’s case, because his petition

was filed well after April 24, 1996, the enact-

ment date of the Act. See Lindh v. Murphy,

521 U.S. 320, 117 S.Ct. 2059, 2068, 138

L.Ed.2d 481 (1997) (holding that the new

provisions of chapter 153 generally apply to

cases filed after the [AEDPA] became effec-

8. Even if the Court did not find the claim proce-

tive).®:' The newly amended 28 U.S.C.

§ 2254(d) establishes the standard of review

to be applied by a federal court considering a

state prisoner’s petition for habeas ‘relief.

Section 2254(d) provides as follows: ‘> cavaeis 8

(d) An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court

shall not be granted with respect to’ any

claim that was adjudicated on the merits in

Sate comms qreneetings eas Ge eee

cation of the claim— :

(1) Fesulted in a decision that was con

trary to, or involved an unreasonable

application of, clearly established Feder-

al law, as determined by the Supreme

Court of the United States; or '

(2) resulted in a decision that was based

on an unreasonable determination of the

facts in light of the evidence presented

in the State court proceeding.

Both parties object to the standard of re-

view as outlined by the Magistrate Judge.

Petitioner objects arguing that in evaluating

the Virginia Supreme Court’s cursory, “no

merit” state habeas ruling, the proper stan-

dard of review is de novo. Respondent ob-

jects to the Magistrate Judge’s determina-

tion that mixed questions of law and fact (e.g.

Petitioner’s ineffective assistance of counsel

claims) are to be reviewed de novo. Respon-

dent argues that, under the AEDPA, state

court findings both of fact and of law are

subject to deferential review.

{19} Section 2254(d) applies to any claim

adjudicated on the merits in state court.

Contrary to the argument advanced by Peti-

tioner, a state court decision that summarily

dismisses a petitioner’s claim as meritless is

an adjudication on the merits within the

meaning of § 2254(d). Wright v. Angelone,

151 F.3d 151, 156, No. 97-32, 1998 WL

394990, at *4 (4th Cir. July 16, 1998); Hen-

9. The specific provision of § 107 of the AEDPA,

however, is not applicable. Although § 107 con-

tains several provisions pertaining specifically to

capital defendants, these provisions are applica-

ble only if the state meets the “opt-in” require-

‘ments set forth in § 107. Virginia does not meet

-. the qualifications of § 107, (Mem. Op. and Or-

der, Dec. 6, 1996.), thus prechuding its applicabil-

ity to this case.

362 @> repens: surevemenr, 24 sof

ca Foe

non v. Cooper, 109 F.3d 830, 335 (7th Cir.

ened in cases where the state court offers no

explanation for its decision. See Cardwell v.

Netherland, 971 F Supp. 997, 1015 (E.D.Va

1997). In cases where there is no indication

of how the state court came to its decision, it

will obviously be more difficult for the feder-

al court to determine whether the state

court’s ultimate determination involved an

euitinad ty Os than of leat -

Seventh Circuit: ee

(O}f course the better the job the state

criterion of a reasonable determination is

whether it is well reasoned. It is not. It

. $75 oe Oe oe

to point to an authoritative decision of the

Supreme Court in order to secure a’ writ.

See Bocian v. Godinez, 101 F.3d 465, 471 (7th

Cir.1996). ;

In Green v. French, 143 F.3d°865 (4th

Cir.1998), the Fourth Circuit interpreted the

meaning of “contrary to” and “unreasonabl

application of.” tig

[A] decision is “contrary to” precedent only

when, either through a decision of pure law

or the application of law to facts indistin-

Id.

“ee wees, Sand (aa. Br athe a

. .

Mapes... «

a“

or when that decision recognizes the cor-

rect principle from the higher court’s. pre-

, cedent, but unreasonably applies that prin-

ciple to the facts before it (assuming the

facts are insufficiently different from those

that give rise to the precedent as to consti-

tute a new context for consideration of the

Id. : a ; eg

Section 2254(d)(2) dictates the standard of

review applicable to claims based on pure

questions of fact. When a petition for habe-

as relief is based on a challenge to a factual

determination, before granting an application

for a writ, the federal court must find that

the state decision was based on an unreason-

able determination of the facts in light of the

evidence presented in state court. 28 U.S.C.

§ 2254(d\(2).. In addition, factual determina-

tions made by a State court shall be pre-

sumed to be correct.and the petitioner has

the burden of rebutting that presumption by

clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1).

A. . The trial court’s failure to allow con-

sideration of Petitioner’s parole ineli-

gibility violated his rights under the

Eighth and Fourteenth amendments

(The Simmons claim).

The Magistrate Judge recommended that

monwealth, 248 Va. 518, 450 S.E.2d 360,

limited the application of Simmons v. South

Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129

verdict. (R & R 113.) Respondent objects

porte demi Magistrate Judge clearly

. - 24> RAMDASS y.: ANGELO 363

Cite as 28 F.Supp.2d 343 (E.D.Va. 1

See 28 U.S.C. § 2254(d(1). Petitioner’ does

not object to the Magistrate Judge’s recom-

mendation, but expresses two (2) issues of

concern.'' First, Petitioner notes that, to the

extent that Virginia state law was interpret-

ed, the Magistrate Judge’s decision was ap-

propriate because. the Virginia Supreme

Court’s decision was “so arbitrary or capri-

cioys as to constitute an independent due

process or Eighth Amendment violation.”

See Richmond v. Lewis, 506. U.S. 40, 50, 113

S.Ct. 528, 121 L.Ed.2d 411 (1992). Second,

Petitioner clarifies that the right to inform

the jury of his parole ineligibility status

stemmed from both the Eighth Amendment

and the Fourteenth Amendment.

The Court finds that the judgment of the

Virginia Supreme Court resulted in a deci-

sion that is based on an “unreasonable deter-

mination of the facts in light of the evidence

presented in the State court proceeding” and

involved an “unreasonable application” ‘of

Simmons as determined by the Supreme

Court of the United States. Accordingly,

Respondent’s objection is OVERRULED.

For the following reasons, the application for

a writ of habeas corpus is GRANTED and

Petitioner's case remanded to the Circuit

Court for Fairfax County for resentencing.

1. Simmons v. South Carolina

Simmons represents the most recent in a

series of cases incrementally refining the

process of applying the death penalty by

expanding, first, the sentencer’s knowledge,

and second, an accused’s right to respond to

arguments advanced by the sovereign in sup-

port of the imposition of the death penalty.

The theme in all of the cases is dual. First,

due process requires that a defendant be

permitted to introduce, and the sentencer

consider, all relevant evidence that may be

viewed in a mitigating light by the sentencer.

See McCleskey v. Kemp, 481 U.S. 279, 107

S.Ct. 1756, 95 L.Ed.2d 262 (1987); Skipper v.

South Carolina, 476 U.S. 1, 106 S.Ct. 1669,

90 L.Ed.2d 1 (1986); Barclay.v. Florida, 463

U.S. 989, 108 S.Ct. 3418, 77 L.Ed2d 1134

(1983); Eddings v. Oklahoma, 455 U.S. 104,

__ ty because such an issue is a mixed question of

mined that argument to be procedurally default-

«ed, Seesupralll.G.. . .; °..! pile

364 @* FEDERAL SUPPLEMENT, o MD

102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett 2.

Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d

973 (1978). Second, a defendant must have

sentencer relies in imposing the death penal-

ty, see Simmons; Gardner v. Florida, 430

US. 349, 97 S.Ct. 1197, 51 L.Ed2d 393

(1977), and the opportunity to rebut ~'the

Lockett; Gardner. In addition” to~ these

the court, to the sentericer, is constitutionally

encouraged, California v. Ramos, 463 US.

992, 103 S.Ct. 3446, '77 L.Ed.2d 1171 (1993),

without regard to how the information may

be received and, in the context of the ability

of a defendant, necessarily, to be able to

respond. . ’ ‘ ° °

In Stmmons, the defendant was convicted

of the murder of an elderly woman. The

state relied solely on “future dangerousness”

as the basis upon which the. jury should

consider whether the defendant should be

sentenced to’ death or given life imprison-

ment as punishment for his crimes. Sim-

mons, 512 U.S. at 157, 114 S.Ct. 2187. The

petitioner, however, presented evidence that

his future dangerousness was limited to el-

derly women and, therefore, the jury would

have no reason to expect violent acts from

him in prison. Jd at 158, 114 S.Ct. 2187.

Further, the petitioner requested that the

court instruct the jury that, in his case, “life

imprisonment” did not permit parole. Jd

“To buttress his request, [the] :petitioner

proffered, outside the presence of the jury,

evidence conclusively establishing his parole

ineligibility,” id, and, additionally, Petitioner

presented evidence that (1) jurors believe ‘a

for the balance of his natural life.. Jd at

159-60, 114 S.Ct. 2187. rte we

During deliberations in the sentencing

‘of parole. Jd. at 160,114 S.Ct. 2187. “The

parole in reaching its verdict and further

said, “the terms life imprisonment and death

‘sentence are to be understood in their plain

and ordinary meaning.” .Jd. Twenty-five

minutes later, the jury returned with the

sentence of death. Jd .

The issue before the United States Su-

preme Court was whether the jury was enti-

tled to know that the petitioner was ineligible

for parole. In a seven to two opinion, the

Court concluded that the jury was so enti-

tled. Justice Blackmun, writing for the

rality, stated: . é

In assessing future dangerousness, the ac-

tual duration of the defendant’s prison sen-

tence is indisputably relevant. Holding all

other factors constant, it is entirely reason-

able for a sentencing jury to view a defen-

dant who is eligible for parole as a greater

threat to society than a defendant who is

_ assurance of a defendant’s future nondan-

gerousness to the public than the fact that

he never will be released on parole. The

trial court’s refusal to apprise the jury of

information so crucial to its sentencing de-

termination, particularly when the prose-

_cution alluded to the defendant’s future

dangerousness in its argument to the jury,

_ cannot be reconciled with our well-estab-

lished precedents interpreting the Due

Process Clause.

7 the jury's attention—by way of argue when the jury asked the question of

Id. at 177, 114 S.Ct. 2187.

Id. at 168-64, 114 S.Ct. 2187. The opinion

Sea? Gk ee further stated: “[TJhe jury was left to specu-

onment' eventually be released late about petitioner's parole eligibility when

prison and (2) jurors indicate that the evaluating petitioner’s future dangerousness,

amount of time a convicted murderer would -

ey and was denied a straight answer about peti-

actually spend in prison is an important fae- isan, parole eligibility even when it wes

rae 1d requested.” Id. at 165-66, 114 S.Ct. 2187.

. : ea _ Justice O’Connor, in an opinion concurring

The trial court, however, denied the peti- in the judgment and joined by Chief Justice

tioner’s request for an instruction regarding Rehnquist and Justice Kennedy, stated: x

nied a request for an instruction which indi- _. dant’s future dangerousness, however, the

cated that the petitioner would remain in jail fact that he will never be released from

by defense counsel or an instruction

| tion of the offenses specified in subdivi-

sions (I), (i), or (iii) when such offenses

the court—as a means of responding tothe there was ' PossiPal death,” Petitioner had

: ; i ’ . the jury

life impriso t without possibility of pa 53.1-151(B1) because even though th

role and the prosecution argues that the

defendant will pose a threat to society tm

that sentence was, in fact, not imposed

) two and one-half

18, 1993,

the future. until February

2. . “Unreasonable determination of

facts”

[20] In this case, on January 29, rae

the time of the j s question, Petitio

had been tried and convicted by another Jury

In its decision, the Virginia Supreme i.

relied upon section §3.1-151(B1) of the Virg

nia Code, the statutory language establishing

person of three separate

felvay offenses of (1) murder, (i) rape oF

(ii) robbery by the bart

February 18

weeks after conclusion of the death sentence

the trial. Ramdass, 450 S.E.2d at 361.

An obvious question arises from the court's

the court had

ineligibility for parole (because

not Sou a sentence), how oa

Petitioner’s immediate offenses for whi

jury was determining the sentence ¢

logical rea-

iction? The Court finds no ogical F

pene the exclusion of the Domino s Pizza

the Court finds that the

ture of the Dominos Pizza

eure is factually indistinguishable from

j law

minatio facts when applying the

to jeer Petitioner was parcle

366 28 FED ‘SUPPLEMENT, 2d SERIES

ing question into the court: “ifthe Defendant isn’t it, Mr. Piotrowski?” .(/d at 279.) In ‘

is given life, is there a possibility of parole at response, defense counsel acknowledged that —

er’s trial, Virginia law precluded informing a tion like this, when you're ‘talking about a

jury, even in response'to a requést'forinfor- death case, when the issue’s this‘¢rucial, that

mation, about a defendant’s parole’ status and something more than that is necessary be-

whether defendant was parole - eligible. causé ‘their ‘concern is’ parole - which ‘they

Mueller v. Commonwealth, 244 Va. 386, 422 aren't allowed to’be tdld about.” ‘(1/29/98 Tr.

S.E.2d 380 (Va.1992).° ~” OR | : .

The Commonwealth's immediate response Weslth’s “objection” .and informed the Jury

to the jury’s question was to advise the court that they should impose what they felt was a

of the language of the Model Jury Instryc- air and just sentence and not concern them-

tion 2.7000 which stated: “you are-to decide elves ‘With the consequences. The jury re-

what a just punishment is and not to concern sponded by recommending that Petitioner be

yourself with -what happens thereafter.” ‘Sentenced to death (/d at 281.)

(1/29/98 Tr. at, 278.) In response thereto, (Qn direct appeal, Petitioner argued that

Petitioner’s counsel made the following state- the trial court committed error in refusing to

ments: te ' respond to the jury question in a way that

MR. PIOTROWSKI: Your “Honor, obvi- would make the jury aware that he would be

ously I don’t think that that answer is ineligiblé for parole upon his conviction of

sufficient for the circumstances. I’m try- capital murder, in derogation of the Eighth

ing to suggest the wording and I anticipat- and Fourteenth Amendments to the United

ed this question and*I hoped to have it States Constitution. The assignment of er-

written out for you, I don’t, I’m trying to ror was rejected on direct appeal. Ramdass,

formulate it in my mind right now. +450 S.E.2d at 361. eo

| believe that the Court [sic] should be iti ‘naeking Horan

told that they can not concern themselves sen ae ean tee eens ee

with what will occur after they impose issue was raised in the context of the court’s

thelr sentenes. refusal to inform the jury of Petitioner's

I feel, however, Your Honor, though that parole status. That petition for certiorari

the question itself implies that they have a was granted. On remand, the sole issue

perception that if they give a life sentence before the Virginia Supreme Court was

that he will be out in a very short period of “yhether the Due Process Clause of the

time. _-.. +. Fourteenth Amendment was violated by the

I’m looking for some kind of language _ refusal of the trial judge to instruct the jury

that would balance out that perception. A that the defendant was ineligible for parole

suggestion that I have here in front of me when the prosecution relied on future dan-

is—I wrote as we talked, is that “You must gerousness to justify imposition of the death

not concern yourself with matters that will penalty.” (App. Brief at ii, Appeal to Va.

ener a ee SOL agi 6 eek

you may impose your sentence Ce Regt ep ; owe.

the legal sentence imposed in the case.” a ee

I'm open to any other suggestions. ag . a * np sane sera

(29/93 Tr. at 278-79.) | decided that Simmons was not an issue be-

The court responded by quoting the Virgi- cause Petitioner was not parole ineligible on

nia Model Jury Instruction and stating to January 29, 1993. Ramdass v. Common-

defense counsel that “that’s what the law is; tvealth, ‘248 Va. 518, 450 S.E.2d 360 (1994).

13. At this point, trial counsel was not obligated was riot constitutionally defective for failing to

to offer or argue for a specific instruction con- anticipate ‘a new rule of law. United States v.

trary to controlling Virginia law, and counsel Pn McNamara, 74 F.3d 514 (4th Cir.1996).

at 280.) The court ‘sustained the Common- -

SPP eVUePrseseR, STEED

i+. RAMDASS —- , 367

Cite as 28 F.Supp.2d 343 (E.D.Va. 1998)

Writing for the court, Justice Whiting stated,

in pertinent part: Sx.¢ “Sots.

At the time that the jury was consider-

ing Ramdass’s penalty on” January 30,

1993, Ramdass was not ineligible for parole

since he had only two “separate felony

offenses” within the meaning” of Code

§ 53.1-151(B1). They were: ~~

§ 53.1-151(B1). See Smith v. Common-

wealth, 134 Va. 589, 592-93, 113 S.E. 707,

709 (1922\jury’s verdict of conviction upon

which no judgment had been entered not

convietion within meaning of statute is

qualifying person from holding public -

fice). Since Ramdass was not ineligible for

parole when the jury was considering his

sentence, the Simmons decision does not

affect his death sentence.

Id. at 361.

Petitioner’s case is not unlike the Sim-

mons case. In both, the prosecution relied

that Petitioner was parole eligible and de-

spite the United States Supreme Court's ad-

monition that, juries should. not be left to

imprisonment. This, the Court finds to be

an unreasonable application of Simmons.

one was aware that, at the time of the capital

sentencing phase, Petitioner had either plead

guilty or been found guilty by a jury of at

least three qualifying felony offenses under

Virginia Code Section §3.1-151(B). Indeed,

these offenses were relied upon to establish

Petitioner's future dangerousness. The jury

"For the aforementioned reasons, the Court

finds that the judgment of the Virginia Su-

(SERGE creme newer: cei SER Rr RN

368 28 FEDERAL SUPPLEMENT, 24 SERIES

“14 RAMDASS — . 369

Cite as 28 F.Supp.2d 343 (E.D.Va. 1998) :

preme Court resulted in a decision that is and the preserved claim of ineffectiveness

based on an “unreasonable determination of for failure to produce intent evidence. Only

the facts in light of the evidence presented in the latter will be addressed here. Petition-

the State court proceeding” and involved an er’s claim that his trial counsel was ineffec-

“ynreasonable application” of Simmons a8 tive for failing to produce intent evidence is

determined by the Supreme Court -of the comprised of four (4) underlying claims: (D

United States. Accordingly, Respondent's Petitioner was unreasonably advised not to

tance of counsel in violation of his examiner, (iii) trial counsel failed to cross

. | oe ; t Cir.1991), and that even if trial counsel

rights under the Fifth, Sixth, Eighth examine the prosecution's firearms identifi- a the sentencing phase does not vitiate the —_

vd Fourteenth amendments. | ~ cation expert; and (iv) trial counsel failed to : atperl nd ee os oi ~ ng eye pee Se

titioner asserts numerous claimis of inef- obtain an expert who would help them pres- phase trigger pulled binned fury wes |

et ed sums tpn enemy dean Come | , oes Sa ae at be ta et US Bi, We SO. 2273, 10

ineffective assistance of counsel, a litigant quarter- : : L.Ed.2d 80 (1988). Accordingly, Petitioner’

must prove both a aunaa miiaeneh backing,” the Magistrate Judge concluded aoe on is OVERRULED. ‘

and (2) prejudice.” Lockhart v. Fretwell, 506 thet ench of the dais was without meri. | @ ‘Trial counsel failed to object to co- With respect to Petitioner's claim that trial

US. 364, 369, 118 S.Ct. 888, 122 L.Ed2d 180 (22) With respect to the first and second defendant's testimony about his life counsel failed to adequately voir dire all the

(1998); Strickland v. Washington, 466 U.S. sub-issues, Petitioner objects arguing that

668, 687, 104 S.Ct. 2052, 80 L.Ed2d 674 the Magistrate Judge failed to consider the

, gating factors, the Magistrate Judge men-

11984). To prove deficient performance, a affidavits of trial counsel wherein it was stat- (24) Citing Coppola v. Commonwealth, aa .

. ff ti p assistance to permit co-defendant that of the “ . .

- testif ‘ ~ os some jurors indicated that they

Singh to regarding his life * would not consider age or education to be

must show that counsel’s performance fell Garrison, 724 F.2d 1425, 1436 (4th Cir.1983).

below an objective standard of reasonable- Therefore, the first prong is not satisfied

ness. Id. at 688, 104 S.Ct. 2052. To prove because the performance did not fall below

prejudice, the litigant must show that “there the objective standard of reasonableness.

is a reasonable probability that, but for coun- [23] With respect to the third sub-issue,

sel’s unprofessional errors, the result of the Petitioner objects arguing that the firearms

ing would have been different.” /d identification expert was never qualified as a

at 694, 104 S.Ct. 2052. Failure to meet “pallistics expert,” yet he testified about bal-

either prong defeats a litigant’s ineffective istics matters, and, further, that trial counsel

euhtanse & espana? Id. at 700, 104 sdmits in his affidavit that he failed to inter-

S.Ct. 2062. A court not address both view the expert and erroneously allowed him

components of the test if the litigant makes to testify outside his qualifications, thereby

an insufficient showing on one part of the substantially proving the prosecution’s case.

test. Id at 697, 104 S.Ct. 2052. Upon review, the Court finds that the Magis-

trate Judge’s reasoning on these issues is

eligible for the the trial court's instructions regarding miti-

penalty. VaCode § 182-18. Never- gating factors. (Tr. 1/26/98 111-13, 118-19,

1. Trial counsel's trial strategy was nO" proper. (R & R 45-63.) Neither the Court's Petitioner. , Petitioner's objec- Accordingly, Petitioner’s objection is OVER-

existent or internally inconsistent. nor trial counsel’s hindsight is a basis upon tion is OVERRULED. RULED.

This claim consists of two parts: the pro- which to find that an unsuccessful trial tactic : ; ,

cedurally defaulted claim of ineffectiveness constitutes deficient performance. Bell v. $. Trial counsel failed to conduct ade- 4. Trial counsel conceded the sole aggra-

for presentation of inconsistent defenses Bvatt, 72 F.3d 421, 429 (4th Cir-1995). quate voir dire anne nee.

wr ae 2) «es With to Ross, Powell and Amielia, (25) During sentencing, trial counsel

14. If the claim were not procedurally defaulted, on, 891 F.2d 490 (4th Cir-1989). | the Magiotrate Judge conchaded that trial ed in his opening that Petitioner was a bad

to Clozza v. Murray, 913 F.2d 1092)'1098

(4th Cir.1990), the statements did not ‘consti-

acceptable only in some cases and that this is

not such a case because trial counsel con-

pointed mental-health expert's background,

thereby learning of his allegedly pro-prosecu-

tion bias, and for not objecting to the trial

court’s selection. Even assuming that coun-

sel was deficient in not objecting to the

Petitioner was not prejudiced. Under Ake v.

Oklahoma, 470°U.S. 68, 105 S.Ct. 1087, 84

L.Ed2d 53 (1985), an indigent defendant is

entitled to the appointmentof a mental

health expert when his legal sanity is likely

to be a significant issue at trial Va.Code.

§ 19.2-264.3:1 provides in pertinent part:

quently, the adoption of such a rule at this

point in Petitioner’s case would be a new rule

which, generally, should not be created on

collateral review. Saffle v. Parks, 494 US.

484, 488, 110 S.Ct. 1257, 108 L.Ed2d 415

(1990). Accordingly, the objection is OVER-

RULED. foo | r

E. The trial court’s refusal to allow Peti-

The Magistrate Judge determined that the tioner exculpatory statements, the tri-

trial court was within its discretion in deny- al court’s refusal to review such state-

ing the requests for a medical doctor and ments in camera and the prosecutor's

expert investigator. (R & R 63.) Petitioner improper refusal to provide exculpato-

required to prove beyond a reasonable doubt. — pom — whom phen

tal murder and (ii) a finding by the court

mance. Trial counsel's theory was that ‘no that the defendant is financially unable to objects to the finding as to the medical ex- ry statements denied Petitioner his

one could know whether Petitioner might pay for expert assistance, the court shall pert. Petitioner argues that the trial court's Fifth, Sixth and Fourteenth amend-

commit crimes if he. was on the street, but appoint one or more qualified mental denial of a medical expert on the grounds ment rights.

that Petitioner did not represent a future ee ee that “no medical evidence had been present- Neither party objected to the Magistrate

danger to society because he would spend - to assist the defense in the prepara- ed was an exercise in pretzel logic.” The Judge's determination of this claim. Accord-

the rest of his natural’ life in jail for the tion and presentation of information con- Court finds that the trial judge’s decision was ingly, the Court adopts the, Magistrate

__ string of crimes for which he had been con- cerning the defendant's history, character, not unreasonable in light of the lack of evi- Judge's rationale, (R & R 70-73.), which is

victed. | or mental condition, including (i) whether dence Petitioner presented to justify his need reiterated herein in pertinent part. For the

The allegedly improper statements the defendant acted under extreme mental

: : or emotional disturbancé at the time of the

constitute deficient performance. According- offense; (i) whether the capacity of the

- defendant to appreciate the criminality of

ee ee ee ae

the requirements of the law was signifi-

Pe penalty phase. cantly impaired at the time of the offense;

J, 1 consisted of two arguments: tors in mitigation relating to the history or

CO Et ots cee character of the defendant or the defen- :

a mental health expert and other = dant’s mental condition at the time of the

miscellaneous claims. For the reasons stat- offense.

the C do atau =. The court-appointed expert neither found

) ~ogh ne i that Petitioner’s sanity was at issue nor de-

Trial ’ wid of Petiti termined that Petitioner’s history or charac-

er’s dysf ional cil iO zh testi - ter was a mitigating factor. Evidence re-

ny by Petitioner, Petitioner’s brother and garding Petitioner's history and character,

mother and a probation officer who had ve om aah pro re

such evidence in a different manner, trial ee OE ee

counsel's choice does not constitute deficient anmprtie remger gene om age A aoe

performance. of these evaluations presented through

[27] With respect to the mental health the probetion effleer. Fh

. Finally, at no time has

expert, Petitioner objects to the Magistrate a mental evaluation of Petitioner revealed

Judge’s conclusion, arguing that trial counsel evidence that Petitioner was (or is) operating

was ineffective for not researching the ap- under a mental disease or defect which would

for medical evaluation. Accordingly, Peti- folowing reasons, the Court finds this claim

tioner’s objection is OVERRULED. to be nonmeritorious. ;

D. P om ‘nd [29] Petitioner’s claim has three compo

. Petitioner arbitrarily unrea- nents. The first is the denial of polygraph

ee Oe penne results which trial counsel sought to use for

Sixth, Eighth ourteenth impeachment purposes. The second compo-

amendments to make an ex parte nent consists of statements made to the po-

that this claim was without merit because and inconsistent statements made by co-de-

there was no constitutional entitlement to ez fendants. The third is the trial court’s refus-

parte hearings on requests for the appoint- al to conduct an in camera review. With

ment of experts, and, if there is, such right respect to the first claim, polygraph material

would constitute a new rule that was not in is inadmissible under Virginia law, Robinson

place at the time of Petitioner's trial. (R& v. Commonwealth, 231 Va. 142, 341 S.E.2d

R 68.) Petitioner objects arguing that the 159, 167 (1986). Moreover, failure to disclose

requirement of an ex parte proceeding is polygraph results does not deprive a defen-

firmly established by both the Supreme dant of “material” evidence under the Brady

missible, even for impeach 2nt purposes, as

_ Under federal criminal procedure, when a in the C ith of Vi,~'a. Wood ».

defendant requests expert assistance, there >, o/omew, 516 U.S. 1, 116 S.Ct. 7, 188

forced to disclose its evidence and strategy to material sought must be “material.” Brady

the prosect In Ake, 470 US.’ 68, 105 ». Maryland, 373 U.S. 88, 87, 83 S.Ct. 119%,

S.Ct. 1087, 84 L.Ed2d 58, the United States 10 L.Ed2d 215 (1963). Evidence is “materi-

have been different. Wood, 516 US. at 5,

116 S.Ct. 7. A “reasonable probability” that

the United States Supreme Court noted in

Estelle v. McGuire, 502 U.S. 62, 112 S.C’

475, 116 L.Ed.2d 385 (1991), a federal court’s

habeas review is not / “nded to address

issues of state criminal nrocedure and evi-

dence. Accordingly, Petitioner's objection 's

sion v. Murray, 41 F.3d 920, 927 (4th Cir.1994);

United States v. Wilson, 901 F.2d 378, 7.08

Yes Fes %

Bs,

‘~* "

a >

_.RAMDASS y.:ANGELONE - > 373

Cite as 28 F.Supp.2d 343 (E.D.Va. 1998)

criminal conduct in the sentencing phase. (R

& R 86.) Citing Nichols v. United States,

511 US. 788, 114 S.Ct. 1921, 128 L.Ed.2d 745

(1994), Petitioner objects arguing that the

federal constitution requires that the prose-

cution prove by a preponderance of the evi-

dence that the defendant committed the

unadjudicated conduct. 'n Nichols, the Su-

preme Court held that the federal due pro-

cess clause requires in a non-capital, federal

action that previous conduct being used to

enhance a sentence be proved by a prepon-

derance of the evidence. Jd 114 S.Ct. at

1928. on

[32] The Court finds that Petitioner’s ar-

gument, if accepted, would create a new rule

which was not in effect at the time his convic-

tion became final. Sajffle, 494 U.S. at 488,

110 S.Ct. 1257. The, United States Supreme

Court has repeatedly refused to determine

the issue of whether unadjudicated criminal

conduct can be introduced in the sentencing

phase of a capital trial’ At the time of

Petitioner’s trial, Virginia statutory law per-

mitted the introduction of such evidence

when certain notice requirements are met.

Watkins v. Commonwealth, 229 Va. 469, 331

S.E.2d 422, 435 (Va.1985); see also Gray v.

Thompson, 58 F.3d 59, 63 (4th Cir.1995).

Virginia law, however, did not require that

the prosecution prove the conduct by any

standard. See Beaver v. Commonwealth, 232

Va. 521, 352 S.E.2d 342 (Va.1987). Because

federal courts generally do not create new

rules or apply new constitutional rights on

collateral review, Saffle, 494 U.S. at 488, 110

S.Ct. 1257, Petitioner’s claim must fail. Ac-

cordingly, Petitioner’s objection is OVE

RULED. ty

1. Virginia’s capital murder sentencing

statute is unconstitutional.

[33] The Magistrate Judge determined

that this claim is nonmeritorious. (R & R 77-

85.) Petitioner generally objects without

that the states are divided .

1993, six (6) states permit the ‘use of such evi-

dence almost without limitation; ten states re-

Judge’s reasoning. The Court finds that the

claim is nonmeritorious as the statute is not

unconstitutionally vague. The Fourth Cir-

cuit has denied Plaintiffs preserved claims

that the “future dangerousness” prong of.the

Virginia capital sentencing statute is uncon-

stitutional on that ground. See Gray v.

Thompson, 58 F.3d 59, 63 (4th Cir.1995)

(finding that “future dangerousness” may be

determined using unadjudicated misconduct);

Tuggle v. Thompson, 57 F.3d 1356, 1362 (4th

Cir.1995) (stating that Virginia is a “non-

weighing” state, i.e. its statutory scheme nar-

rows the class of persons eligible for death

penalty and a weighing instruction is not

required by the federal Constitution); Spenc-

er v. Murray, 5 F.3d 758 (4th Cir.1993) (find-

ing that “future dangerousness” prong is not

vague). Accordingly, Petitioner’s objection is

OVERRULED.

V. REQUEST FOR EVIDENTIARY

HEARING

Whether an evidentiary hearing is re-

quired is determined in light of the petition,

the answer, the transcript and record of state

court proceedings, and any expanded record

evidence. See Rule 8, Rules Governing

§ 2254 Cases. If a hearing is not required,

“the judge shall make such disposition of the

petition as justice shall require.” The Court

finds that the facts presented in the record,

transcripts of the state court proceedings,

the affidavits of trial counsel and experts,

and the arguments presented in the plead-

ings lead to the conclusion that an evidentia-

ry hearing is not required to address the

claims raised by Petitioner. Accordingly, the

request for an evidentiary hearing is denied.

VI. CONCLUSION

The Court, having examined the objections

to the Magistrate Judge’s R & R, and having

reviewed the record and conducted a de novo

review of those portions objected to, does

hereby order that the petition be GRANTED

374

and that Respondent's ‘motion toons be

DENIED. ''Petitioner’s case’:is REMAND-

ED to the ‘Circuit Court of Fairfax ‘County

for re-sentencing in light of the’ Court's rul-

ings herein. ae. , ha SBE

‘ItissoORDERED. =

. Ciomee

David G. LAMB, Plaintiff, .

‘QUALEX, INC., Defendant.

No. Civ.A. 3:98CV413.

United States District Court,

_E.D. Virginia,

Richmond Division.

Dec. 16, 1993.

Former employee with depression

brought action against former employer al-

leging violations of the Americans with Dis-

abilities Act (ADA). Employer moved for

iad t The District Court

Richard L: Williams, Senior District Judge,

held that: (1) employee was judicially es-

topped from claiming to be a qualified indi-

vidual with a disability under ADA, and (2)

employer was not liable to employee under

ADA.

Motion granted.

1. Estoppel €=68(2) .

“Judicial estoppel” is an equitable doc-

trine that prevents a party who has success-

- fully taken a position in one proceeding from

ating Soggy gue 2 Ae

proceeding. ”

dee entities Waite alk Gade

ee ee ee,

Ryerss $i

Aggies oh pitti ciiigel iii

priate in ADA action when the prior proceed-

28 FEDERAL SUPPLEMENT, 2d SERIES

ing is a Social Security Administration (SSA)

application ‘for disability benefits. Ameri- ‘

cans with Disabilities Act of 1990, § 2 et seq. ;

42 US.C.A. § 12101 et seq.

3. Estoppel 68(2)

‘

Former employee suffering from depres- |

sion was judicially <s!opped from claiming to

be a qualified individual with a disability

under ADA; employee claimed to be a quali-

fied individual with a disability capable of at

least part-time work, which was factually in-

compatible with position he, had taken in

prior Social Security Administration (SSA)

proceeding that he was completely unable to

work, his prior position was accepted by

SSA, and the two directly contradictory posi-

tions were advanced for purpose of gaining

unfair advantage in proceedings governed by

divergent standards. Americans with Dis-

abilities Act of 1990,° §§ 101(8), 102, 42

U.S.C.A. §§ 12111(8), 12112."

4. Civil Rights 173.1

In ADA action, employee bears the bur-

den of demonstrating that he could perform

the essential functions of his job. Americans

with Disabilities Act of 1990, § 2 et seq., 42

US.CA. § 12101 et seq; 29 C.F.R.

§ 1630.2(n)(1).

5. Civil Rights €173.1

The ADA requires only that employers

adopt accommodations that are reasonable.

Americans with Disabilities Act of 1990, § 2

et seq., 42 U.S.C_A. § 12101 et seq.

6. Civil Rights 173.1

-If employee with disability cannot per-

form the essential functions of his position

with reasonable accommodations, then he is

not entitled to relief under the ADA. Ameri-

cans with Disabilities Act of 1990, § 2 et seq.,

42 US.C.A. § 12101 et seq.

7. Civil Rights 173.1

The ADA does not require that an em-

ployer create a position to accommodate a

disabled employee. Americans with Disabili-

ties Act of 1990, § 2 et seq, 42 USCA.

§ 12101 et seq. |

8. Civil Rights 173.1

pasninnihihin it Cengage wits 0 de

ability imposes an “undue hardship” on em-

360 Va. a a

Bobby Lee RAMDASS

de dts ies v. ; ’

COMMONWEALTH of Virginia.

No. 980693.

: iis ie eeais

Nov. 4, 1994.

Defendant was convicted in the Circuit

Supreme Court, 114 S.Ct. 2701, granted cer-

tiorari, vacated judgment, and remanded

case. On remand, the Virginia Supreme

Court, Whiting, J., held that defendant had

Homicide @311

Defendant had not yet been convicted of

three separate felony offenses at time of

penalty phase of capital murder trial and,

thus, defendant had not been rendered statu-

torily ineligible for parole which would have

entitled jury to information on defendant’s

potential for parole for purposes of consider-

ing his future dangerousness; jury in anoth-

er case had found defendant guilty of third

felony but judgment had not been entered on

~ verdict. Code 1950, § 53.1-151, subd.

Michael S. Arif, Burke (Leonard R. Pio-

Arif &

Katherine P. Baldwin, Asst. Atty. Gen.

(James S. Gilmore, III, Atty. Gen., on brief),

for appellee.

Present: All the Justices. ‘

WHITING, Justice.

Bobby Lee Ramdass pleaded guilty to the

robbery of Mohammad Z. Kayani immediate-

ly preceding his trial for the capital murder

of Kayani. The capital murder charge was

predicated on Ramdass’s alleged murder of

Kayani in the commission of robbery while

armed with a deadly weapon, Code § 18.2-

31(4), and the use of a firearm in the commis-

sion of Kayani’s murder, Code § 18.2-58.1.

The trial court deferred action on Ramdass’s

guilty plea.

In a bifurcated jury trial conducted under

the provisions of Code §§ 19.2-2643 and

-264.4, Ramdass was convicted of Kayani’s

capital murder. In the second phase of the

trial, the jury fixed Ramdass’s punishment at

death, based upon the “future dangerous-

ness” predicate of Code § 19.2-264.2.

Following consideration of a probation offi-

cer’s report, the court imposed the death

sentence fixed by the jury. The court also

imposed a life sentence based upon its find-

ing of Ramdass’s guilt for Kayani’s robbery

and imposed the four-year sentence fixed by

the jury for the firearms violation. We af-

firmed those judgments and the sentence to

death. Ramdass v. Commonwealth, 246 Va.

413, 487 S.E.2d 566 (1993).

In a summary disposition, the Supreme

Court granted Ramdass’s petition for a writ

of certiorari on June 20, 1994, vacated the

judgment, and remanded the case to this

Court “for further consideration in light of

Simmons v. South Carolina, 512 U.S. —,

114 S.Ct. 2187 [129 L.Ed2d 133] (1994).”

Ramdass v. Virginia, — US. —, 114

S.Ct. 2701, 129 L.Ed.2d 880 (1994). Accord-

ingly, by order entered July 29, 1994, we

placed this case on our September 1994 dock-

et with directions for appropriate briefing

and argument.

We rejected Ramdass’s contention in his

earlier appeal that the trial court erred in not

answering the jury’s question, “If the defen-

dant is given life, is there possibility of parole

$e Rokse

MeEPRAER PF

Ps h2258 FH

@ WRIGHT v..COM..:. » ~~ We 96

Cite as 450 S.E.2d 361 (Va. 1994)

S.E.2d at 573.

In Simmons the Supreme Court held that

when “future dangerousness” an issue i

the sentencing phase of a capital murder

case, the jury is entitled to information con-

cerning the defendant’s parole ineligibility.

Simmons, 512 US. at ——, 114 S.Ct. at

2198. Hence, Simmons applies only if Ram-

dass was ineligible for parole when the jury

Code § 53.1-151(B1) establishes a person’s

ineligibility fe + arole as follows:

Any person convicted of three separate

felony offenses of (i) murder, (ii) rape or

ii) robbery by the presenting of firearms

or other deadly weapon, or any combina-

tion of the offenses specified in subdivi-

sions (i), Gi) or (ii) when such offenses

were not part of a common act, transaction

or scheme shall not be eligible for parole.

At the time that the jury was considering

Ramdass’s penalty on January 30, 1998,

Ramdass was not ineligible for parole since

he had only two “separate felony offenses

within the meaning of Code § 53.1-151(B1).

They were:

(1) Ramdass’s January 22, 1993, convic-

tions and sentences for the armed robbery of

two persons on August 25, 1992, at a Pizza |

Hut in Fairfax County. Since both convie-

tions arose from the same transaction, they

are considered as one felony offense under

the express provisions of Code § 53.1-

151(B1).

(2) Ramdass’s convictions for Kayani’s

capital murder and robbery arising from the

same transaction and, thus, considered as

one felony offense under Code § 53.1-

151(B)1). ;

We do not agree with Ramdass’s

tion that his January 7, 1998, conviction by a

jury of an armed robbery in Alexandria also

made him ineligible for parole under the

etattte Judement had not been entered on

verdict; therefore, it cannot be consid-

pee as a conviction under Code § 53.1-

151(B1). See Smith v. Commonwealth, 134

Va. 589, 592-93, 118 S.E. 707, 709 (1922)

(jury’s verdict of conviction upon which no

judgment had been entered not conviction

within meaning of statute disqualifying per-

son from holding public office). Since Ram-

dass was not ineligible for parole when the

jury was considering his sentence, the Stm-

tence. Therefore, we will reaffirm the trial

court’s judgment, and reinstate the defen-

dant’s conviction and sentence to death. .

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