Respondents Brief — Ramdass v. Angelone

Ms Supreme Court, U.S.

agen G FILED

Mar ° MAR 2 3 2000

No. 99-7000

In The

Supreme Court of the United States

¢

BOBBY LEE RAMDASS,

Petitioner,

RONALD J. ANGELONE, DIRECTOR, VIRGINIA

DEPARTMENT OF CORRECTIONS,

Respondent.

_ a

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

S

BRIEF OF RESPONDENT

+

Mark L. Ear.ey

Attorney General of Virginia

KATHERINE P. BALDWIN

Assistant Attorney General

Counsel of Record

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

. (804) 786-4624

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY

CAPITAL CASE

QUESTION PRESENTED

May the due process right to a no-parole instruction

identified by this Court for the first time in Simmons v.

South Carolina be extended to a state prisoner on federal

collateral review who does not dispute the fact that under

state law he was eligible for parole on a life sentence

when his capital jury sentenced him to death?

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE............--seeeeeees 1

1. Ramdase’ Of8enees......cccccccccccccccenseces 1

Hi. The Teled ....cccvcveccscveevecsuceseeaeeaneens 2

III. The Direct Appeal..... teen eeeeesereceseeeens 6

IV. The Post-Conviction Proceedings .............. 10

SUMMARY OF ARGUMENT............--+++0eee0s 15

ARGUMENT ...0cccccccccdsssepeuessseeneeenenneen 16

THE RULE SOUGHT BY RAMDASS WAS NOT DIC-

TATED BY SIMMONS OR ANY CLEARLY ESTAB-

LISHED PRECEDENT AT THE TIME HIS CASE

BECAME PENAL .....cccccvsctcsescsscscnuweueme 16

A. Ramndase’ Clalan....csssccesssesecstsureeneneee 16

B. The Standard of Review ..............sseseeees 19

C. The Rule itn Simmons ... cc cccccccceccscvciscces, 21

D. Virginia Law .....ccscccsevcccccsesssusesscssss 29

E. The Virginia Supreme Court’s Decision Was Not

Contrary to Clearly Established Law........... 39

CONCLUGION . . .0.00.00060000 p00 oceania 44

TABLE OF AUTHORITIES

Page

Cases

Ake v. Oklahoma, 470 U.S. 68 (1995) ..............5.. 15

Bailey v. Alabama, 219 U.S. 219 (1911) ............... 27

Bakery & Pastry Drivers & Helpers v. Wohl, 315 U.S.

iad dbebshidecesbetoesesesciondeoceess 26

Blair v. Commonwealth, 66 Va. 850 (1874)............. 33

Brecht v. Ai'rahamson, 507 U.S. 619 (1993)............ 19

Brown v. Texas, 522 U.S. 940, 118 S.Ct. 354 (1997) .... 42

Butler v. McKellar, 494 U.S. 407 (1990)............... 42

Campbell v. Commonwealth, 431 S.E.2d 648 (Va.

PUPS ASGRUURBbeerEehecpenevbecsoesoccecoeseceee 35

Coe v. Bell, 161 F.3d 320 (6th Cir. 1998), cert. denied,

i an bee sasscsbdosecescneetoocedces 23

Collins v. New Hampshire, 171 U.S. 30 (1898)......... 27

Engle v. Isaac, 456 U.S. 107 (1982) ...............045. 29

Estelle v. McGuire, 502 U.S. 62 (1991)................ 29

Gray v. Netherland, 518 U.S. 154 (1996) .............. 21

Green v. French, 143 F.3d 865 (4th Cir. 1998)......... 20

Greenholtz v. Nebraska, 442 U.S. 1 (1979)............. 28

Griffin v. State, 983 S.W.2d 282 (Tex. Crim. App.

1998), cert. denied, 120 S.Ct. 77 (1999) ............. 23

Gryger v. Burke, 334 U.S: 728 (1948) ............0005. 29

Hawks v. Cox, 175 S.E.2d 271 (Va. 1970) ............. 11

iv

TABLE OF AUTHORITIES - Continued

Page

Henderson v. Mayor, 92 U.S. 259 (1875) .............. 27

Hicks v. Feiock, 485 U.S. 624 (1988) ..............045. 27

Hopkins v. Reeves, 524 U.S. 88 (1998) ...........0055. 29

In re Winship, 397 U.S. 358 (1970) ...... 0.2.00 ee eeees 27

Ingram v. Zant, 26 F.3d 1047 (11th Cir. 1994) (per

curiam), cert. denied, 513 U.S. 1167 (1995) ......... 23

Lewis v. Jeffers, 497 U.S. 764 (1990) ...... 2... cee eeuee 29

Lindh v. Murphy, 521 U.S. 320 (1997) ............0005. 19

Marks v. United States, 430 U.S. 188 (1977)........... 21

Memphis Steam Laundry Cleaners v. Stone, 342 U.S.

BD Geen cnc cccccctedcecedessbsasechobeebaccsoes 27

Mickens v. Commonwealth, 457 S.E.2d 9 (Va. 1995) .... 33

Miller v. Johnson, 200 F.3d 274 (5th Cir. 2000)........ 23

Miranda v. Arizona, 384 U.S. 436 (1966).............. 24

Moore v. Reynolds, 153 F.3d 1086 (10th Cir. 1998)..... 43

Mullaney v. Wilbur, 421 U.S. 684 (1975).............. 27

O’Dell v. Netherland, 521 U.S. 151 (1997)...... 21, 22, 42

Oken v. State, 681 A.2d 30 (Md. App. 1996) ......... 24

Philpot v. State, 486 S.E.2d 158 (Ga. 1997), cert.

denied, 522 U.S. 1054 (1998)......... ccc cceeeeeees 23

Railway Express Agency v. Virginia, 347 U.S. 359

GRE 0.0 cacdcvccccensécduccenbecscdsssssecseeunbnes 27

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

GOUEDs cc ccccconcvcasccovccsdeessbwbesctecetncadéns 11

v

TABLE OF AUTHORITIES - Continued

Page

Ramdass v. Angelone, 187 F.3d 396 (4th Cir. 1999) .... 13

Ramdass v. Angelone, 120 S.Ct. 784 (2000)............ 15

Ramdass v. Commonwealth, 437 S.E.2d 566 (Va.

Ginn. . “enennadnedibanasebeacanbebaunenonbeseocet 2

Ramdass v. Commonwealth, 450 S.E.2d 360 (Va.

Se ocvendhscedecdectenecéGnbssstsevisdedandetet 8

Ramdass v. Virginia, 512 U.S. 1217 (1994) ............. 7

Ramdass v. Virginia, 514 U.S. 1085 (1995) ............ 10

Romano v. Oklahoma, 512 U.S. 1 (1994)............... 21

Simmons v. South Carolina, 512 U.S. 154 (1994)... passim

Smith v. Commonwealth, 113 S.E. 707 (Va. 1922) ...10, 31

Spencer v. Kemna, 523 U.S. 1 (1998).............0005. 24

State v. Bey, 736 A.2d 469 (N.J. 1999)...........0005: 23

State v. Billings, 500 S.E.2d 423 (N.C.), cert. denied,

525 U.S. 1 Di weateitidimhidahs siuckaawadse ss 23

State v. Bush, 942 S.W.2d 489 (Tenn.), cert. denied,

*: Ti i Sa Cs ces peseosncss ciebaadescusaens 23

State v. Feaster, 716 A.2d 395 (N.J. 1998)............. 23

State v. Montez, 927 P.2d 64 (Ore. 1996), cert. denied,

SD Qe SP inndyct di ndddéededsoeeseaces ce 24

State v. Simpson, 479 S.E.2d 57 (S.C. 1996), cert.

Se He Gs SE Ces kvcdncscecdiesccoesic 23

State v. White, 709 N.E.2d 140 (Ohio), cert. denied,

SP hs Gt CEE o.0ednetéscdeduweedhes eeeeeenes 23

vi

TABLE OF AUTHORITIES - Continued

Page

Thompson v. Keohane, 516 U.S. 99 (1995) ............. 24

Teague v. Lane, 489 U.S. 288 (1989) ............-.005- 20

Weeks v. Angelone, 176 F.3d 249 (4th Cir. 1999)....... 20

Terry Williams v. Taylor, No. 98-8384.............. 19, 20

STATUTES AND RULES

Ts HEE sano 05e0cs 04 bnccudusesdtnnences 24, 30

BB UBL. BBN i cv vccccvccccscccccnscccocesee passim

Code of Virginia:

OD PD GIRE ee on cccccctedcccecvccescccescccéocene 2

B DAD GBAG.. 0 vc ccccedecsccceccoscccdeceseesossences 5

DS PRG oc cccovccccccccoscccsécasccnvcacsdsuanees 31

DS PRP et ee 35

DD GR cc ccdcccascasteckadsendescctecetesasants 35

OD SRG 0 oc vc ckdnnsedcensudcqscddschensseuccas 36

DO GBS occndctscceccansddnccisusencesvecctactons 31

DB BBE onc cdcncscceccscntusccdepecesucessvnd 39

OD FRI oi cc ccccdocctdscccéssecctocnces passim

GRD 0 cccncotcccccsucesessncec csuvontausiun 39

PEGE D> wocedcncccenedtececdiececanons 32

Rules of the Supreme Court of Virginia:

PD DU no cn ccncdsesecncdedsete cusccatscédacdecat 10

Beebe DASIDERD. 5 oc ccccccccccccccecescecccsessesesos 35

vii

TABLE OF AUTHORITIES - Continued

Page

OrHER AUTHORITY

ee TE ED Enon Gdenieiicded bduntidudwndl das 35

ek RCS ARE ES ee OED yy, 36

See es GU Oh EN bdnaniwachnakesanbieounsuee cater 36

STATEMENT OF THE CASE

I. Ramdass’ Offenses

Between August 25 and September 2, 1992, Bobby

Ramdass and his gang engaged in a series of brutal

armed robberies at five locations in Northern Virginia.

On August 25, 1992, Ramdass and three accomplices

robbed two persons at gunpoint at a Pizza Hut restaurant

in Fairfax. During that robbery, one of the victims was

abducted and the other was struck by Ramdass. (JA

17-18). On August 29, 1992, Ramdass and one accomplice

entered the Bragg Tower apartment hotel in Alexandria

and robbed Christopher Crissel, the clerk, at gunpoint.

During that robbery, Ramdass struck Mr. Crissel in the

jaw with his fist and then pistol-whipped him in the

head. (JA 19-23).

On the afternoon of August 30, 1992, Ramdass and

two accomplices robbed Emanuel Selassie, a taxicab

driver in Arlington. After taking Mr. Selassie’s money at

gunpoint, Ramdass shot him in the head and left him for

dead.' Later that same night, Ramdass committed

another armed robbery of an employee in a Domino’s

Pizza restaurant in Alexandria. (JA 57-58).

Then, on September 2, 1992, Ramdass and four

accomplices entered a 7-Eleven store in Fairfax where

Ramdass proceeded to rob Mohammed Kayani, the clerk,

at gunpoint and then shoot him in the head. Mr. Kayani

1 Mr. Selassie miraculously survived after an extensive

hospital stay during which he remained unconscious for two

weeks and underwent major surgery. (JA 28, 41-45).

died as a result of massive bleeding. See Ramdass v. Com-

monwealth, 437 S.E.2d 566, 568-569 (Va. 1993). (JA

104-105).

Il. The Trial

Ramdass was tried for the capital murder of Mr.

Kayani by a jury in the Circuit Court of Fairfax County.

The jury found Ramdass guilty on January 28, 1993, of

capital murder during the commission of robbery and

using a firearm in the commission of that offense. Ram-

dass pleaded guilty to the related charge of robbery. On

January 29, 1993, in a separate sentencing hearing, the

Commonwealth presented evidence of Ramdass’ exten-

sive criminal history and asked the jury to find that

Ramdass “would constitute a continuing serious threat to

society” under Virginia’s “future dangerousness” aggra-

vating factor and to sentence him to death. See Va. Code

§ 19.2-264.4(C).

As part of its sentencing case, the Commonwealth

presented evidence of an unarmed robbery Ramdass had

committed at the age of sixteen, as well as other juvenile

offenses. (JA 12-15 and Tr. 1/29/93 at 22-25). It also

presented evidence that Ramdass had been tried, con-

victed and sentenced for the Fairfax Pizza Hut robberies.

(Tr. 1/29/93 at 31).

The Commonwealth presented the testimony of Mr.

Crissel from the Bragg Tower robbery. On cross-examina-

tion, Ramdass brought out the fact that he had not yet

been tried for that offense and that it was set for trial in

Alexandria. (Id. at 42-43). The Commonwealth presented

several witnesses involved in the attempted murde: and

robbery of Mr. Selassie, the taxicab driver. (JA 23-45).

Finally, the Commonwealth presented Ramdass’ parole

officer who testified that Ramdass’ summer crime spree

had occurred while he was still under parole supervision.

(JA 46-47).

In its opening statement in the sentencing phase, the

defense told the jury, without objection, that the evidence

will show you that [Ramdass] will serve, right

now before you impose a sentence, the next

ninety-nine years of his life in jail for the sen-

tences that have been imposed.

It will show you that he is pending trial in

Alexandria for the Fort Bragg apartment inci-

dent, robbery, for which as you’ve seen from all

the other charges, will have him facing at least

one life sentence and another four years.

He has yet to be sentenced in the Domino Pizza

robbery in Alexandria, of which he has been

convicted. At least another life sentence.

Bobbie Lee Ramdass will never be out of jail.

Your sentence today will insure that if he lives

to be a hundred and twenty two, he will spend

the rest of his life in prison.

(JA 49-50, emphasis added). Ramdass presented

numerous witnesses, including his brother who testified

about Ramdass’ childhood, his run-ins with the authori-

ties from the age of thirteen and his juvenile incarcera-

tions. (Tr. 1/29/93 at 104 et seq.). Ramdass also called a

parole officer to testify as to her investigation of Ram-

dass’ background in connection with one of his earlier

offenses. (Id. at 115 et seq.).

Bobby Ramdass testified on his own behalf, admit-

ting his guilt in the capital murder, the Pizza Hut rob-

beries, the Bragg Tower robbery, the taxicab driver’s

attempted murder and robbery, the Domino’s Pizza rob-

bery and other crimes. (JA 54-64). He told the jury that he

had been sentenced to serve seventy-six years in prison

for the Pizza Hut robberies in Fairfax and that an Alex-

andria jury had found him guilty of the Domino’s Pizza

robbery and had recommended an eighteen-year sen-

tence, but that he had not yet been sentenced for that

crime. (CA4 App. 136-137). He explained that he was

scheduled to be tried the following month in Alexandria

for the Bragg Tower robbery. (Id. at 157).?

At the conclusion of all the evidence, the jury was

instructed on the law. (JA 76a-77). Ramdass did not

request an instruction regarding his parole status. During

the subsequent closing arguments, the defense argued

that

Bobbie Lee is going to jail for the rest of his life.

The numbers have been run by you, ninety-nine

plus years. There are cases in Court, matters still

outstanding. . . . He should never see the light of .

day. . . . I ask you to give him life. Life, he will

never see the light of day, but may you not take

his life.

2 Eight months after his Fairfax capital murder trial,

Ramdass pleaded guilty in Alexandria to a murder he had

committed on July 15, 1992. During the sentencing hearing on

the Fairfax capital murder, the prosecutor cross-examined

Ramdass regarding the Alexandria murder, but Ramdass denied

any involvement. (JA 63-64). The prosecutor presented no

evidence about that separate murder.

(JA 85, emphasis added). The prosecutor did not object

to, comment on or challenge this defense argument in any

way. The jury retired at 4:20 p.m. (JA 87). At 7:02 p.m., the

jury sent out a written question: “if the Defendant is

given life, is there a possibility of parole at some time

before his natural death?” (JA 88). Ramdass did not

request an instruction that he would not be released on

parole. Instead, he suggested that the court answer the

question as follows:

You must not concern yourself with matters that

will occur after you impose your sentence, but

you may impose [sic] that your sentence will be

the legal sentence imposed in the case.

(JA 89). The court instead accepted the Commonwealth’s

suggestion that settled precedent from the Virginia

Supreme Court required the following response taken

from a Virginia model jury instruction:

You should impose such punishment as you feel

is just under the evidence and within the

instructions of the Court. You are not to concern

yourselves with what may happen afterwards.

(JA 91). After giving the instruction, the jury was excused

for the night. It reconvened the following morning at 9:00

and, at 10:25 a.m., the jury returned with its verdict,

fixing petitioner’s sentence at death. (Tr. 1/30/93 at 3).

A post-verdict hearing was held on April 2, 1993. The

court considered a probation officer’s investigation of

Ramdass’ background “to the end that the court may be

fully advised as to whether the sentence of. death is

appropriate and just.” See Va. Code § 19.2-264.5. Ramdass

presented testimony from his mother and from himself.

His attorneys argued that the judge should impose a life

sentence because Ramdass never would be eligible for

parole under Virginia Code § 53.1-151(B)(1). (JA 94). They

also argued that they had spoken to three unnamed jurors

who allegedly said they would have voted for a life

sentence if they had known that Ramdass would have

been ineligible for parole. (JA 95). The court sentenced

Ramdass to death in accordance with the recommenda-

tion of the jury. The court also sentenced him to life

imprisonment for the robbery and to four years in prison

for the illegal use of a firearm. (JA 101).

III. The Direct Appeal

On appeal to the Virginia Supreme Court, Ramdass

argued that his due process rights had been violated

because the trial court had failed to instruct the jury

that he would have been ineligible for parole. Ramdass

recited Virginia’s “three-time loser” parole statute,

§ 53.1-151(B)(1), and then noted that he had been con-

victed and sentenced on six separate robbery charges

dating back to 1988.3 (CA4 App. 168). He did not discuss

when the convictions were imposed, whether they

3 Section 53.1-151(B)(1) provided that,

Any person convicted of three separate felony

offenses of (i) murder, (ii) rape or (iii) robbery by the

presenting of firearms or other deadly weapon, or

any combination of the offenses specified in

subdivisions (i), (ii) or (iii) when such offenses were

net part of a common act, transaction or scheme shall

not be eligible for parole.

ESS aoe

qualified under § 53.1-151(B)(1), or when he became inel-

igible for parole.

On November 5, 1993, the Virginia Supreme Court

affirmed the sentence of death in a unanimous opinion.

(JA 102). Regarding the parole instruction argument, the

Court ruled that “[w]e repeatedly have held that a jury

should not hear evidence of parole eligibility or inel-

igibility because it is not a relevant consideration in fix-

ing the appropriate sentence.” (JA 117). The Court

approved the standard response given by the trial court

to the jury’s question. (JA 118). In his petition for a writ

of certiorari filed in this Court on March 15, 1994, Ram-

dass repeated the argument he had made in the Virginia

Supreme Court. (Record No. 93-8309).

This Court had heard oral argument in Simmons v.

South Carolina, 512 U.S. 154 (1994), on January 18, 1994.

Simmons was decided on June 17, 1994, and, on June 20,

1994, this Court granted Ramdass’ certiorari petition,

vacated the judgment of the Virginia Supreme Court and

remanded the case for reconsideration in light of Sim-

mons. Ramdass v. Virginia, 512 U.S. 1217 (1994). (JA 121).

On remand, the Virginia Supreme Court ordered fur-

ther briefing and oral argument. Ramdass argued that

Simmons required vacatur of his sentence because he was

ineligible for parole. According to Ramdass, he was inel-

igible for parole under § 53.1-151(B)(1) because, prior to

his capital murder trial, he had been convicted in 1988 of

robbery and on January 22, 1993, of the Pizza Hut rob-

beries. (JA 123-124). The Commonwealth argued in

response that Ramdass was not ineligible for parole at the

time of his capital murder trial and could not have been

rendered parole ineligible by a life sentence for the capi-

tal murder. The Commonwealth explained that the 1988

robbery did not qualify under § 53.1-151(B)(1) because it

involved no deadly weapon and that the first qualifying

conviction under § 53.1-151(B)(1) was the Pizza Hut rob-

beries which were part of “a common act, transaction or

scheme” and for which Ramdass had been sentenced. The

Commonwealth also explained that the capital conviction

could have counted only as the second of the three con-

victions required for ineligibility under § 53.1-151(B)(1).

Therefore, if on January 30, 1993, Ramdass’ jury had

imposed a life sentence, Ramdass would not have been

ineligible for parole under § 53.1-151(B)(1). Finally, the

Commonwealth explained that, if given a life sentence for

the capital crime, Ramdass would not have been rendered

ineligible for parole until the third qualifying conviction

was imposed on February 18, 1993, for the Domino’s

Pizza robbery, after the capital jury had rendered its

sentencing verdict. (CA4 App. 193-195).

Ramdass did not dispute the Commonwealth’s fact-

based argument, although the Virginia Supreme Court’s

briefing order expressly had allowed for a reply. (Id. at

182). The Virginia Supreme Court rendered its unanimous

opinion on November 4, 1994. Ramdass v. Commonwealth,

450 S.E.2d 360 (Va. 1994). (JA 128). The Court ruled as

follows:

In Simmons, the Supreme Court held that when

“future dangerousness” is an issue in the sen-

tencing phase of a capital murder case, the jury

is entitled to information concerning the defen-

dant’s parole ineligibility. Simmons, 512 U.S. at

___, 114 S.Ct. at 2198. Hence, Simmons applies

only if Ramdass was ineligible for parole when

the jury was considering his sentence.

Code § 53.1-151(B) establishes a person's inel-

igibility for parole as follows:

Any person convicted of three separate fel-

ony offenses of (i) murder, (ii) rape or (iii)

robbery by the presenting of firearms or

other deadly weapon, or any combination of

the offenses specified in subdivisions (i), (ii)

or (iii) 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 Ram-

dass’ 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(B)(1). They were:

(1) Ramdass’ January 22, 1993, convictions and

sentences for the armed robbery of two persons

on August 25, 1992, at a Pizza Hut in Fairfax

County. Since both convictions arose from the

same transaction, they are considered as one

felony offense under the express provisions of

Code § 53.1-151(B)(1).

(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 contention that

his January 7, 1993, conviction by a jury of an

armed robbery in Alexandria also made him

ineligible for parole under the statute. Judgment

had not been entered on that verdict; therefore,

it cannot be considered as a conviction under

10

Code § 53.1-151(B)(1). See Smith v. Common-

wealth, 134 Va. 589, 592-593, 113 S.E. 707, 709

(1922) (jury’s verdict of conviction upon which

no judgment had been entered not conviction

within meaning of statute disqualifying person

from holding public office). Since Ramdass was

not ineligible for parole when the jury was con-

sidering his sentence, the Simmons decision does

not affect his death sentence. Therefore, we will

reaffirm the trial court’s judgment, and reinstate

the defendant’s conviction and sentence to

death.

(JA 129-131).4

Ramdass did not petition the Virginia Supreme Court

for rehearing. See Rule 5:39, Rules of the Supreme Court

of Virginia (allowing such petitions). Ramdass instead

filed a petition for a writ of certiorari in this Court in

which he argued for the first time that the Virginia

Supreme Court had misapplied Virginia law in determin-

ing that he was not ineligible for parole. (JA 133-138).

This Court denied the petition on April 24, 1995. Ramdass

v. Virginia, 514 U.S. 1085 (1995).

IV. The Post-Conviction Proceedings

In his state habeas corpus petition filed in the Vir-

ginia Supreme Court, Ramdass repeated the argument he

had made on direct appeal. He did not challenge the

Virginia Supreme Court’s determination of parole eligi-

bility under § 53.1-151(B)(1). (JA 146-148). The Virginia

* A chart summarizing Ramdass’ offenses by description

and date of trial and judgment appears in Appendix A.

11

Supreme Court dismissed the petition on March 18, 1996,

and refused to relitigate the issue under its rule in Hawks

v. Cox, 175 S.E.2d 271 (Va. 1970) (absent change in circum-

stances, a previous determination of issue is conclusive).

(JA 151).

Ramdass’ federal habeas petition was filed on Febru-

ary 14, 1997, in the United States District Court for the

Eastern District of Virginia in Norfolk. Ramdass chal-

lenged the Virginia Supreme Court's eligibility deter-

mination on a number of bases, but primarily on the

grounds that the state court allegedly had misinterpreted

and misapplied Virginia law and had no authority in the

first place to determine his eligibility. (JA 162-167). Ram-

dass also argued that the Virginia Supreme Court's ruling

was arbitrary and that Simmons required relief even if he

was eligible for parole as determined by the Virginia

Supreme Court; however, he never proffered an instruc-

tion regarding his parole status that he believed should

have been given to the jury. (JA 167-168). A magistrate

judge recommended that the writ be granted on the basis

that the Virginia Supreme Court had erred in its deter-

mination of Virginia law (JA 299-303) and that Simmons

was not “limited to the very narrow issue of specific

parole eligibility or lack thereof.” (JA 304).

The district court judge subsequently found Ram-

dass’ claim of “arbitrary” action by the Virginis Supreme

Court procedurally barred because it had not been raised

in state court. Ramdass v. Angelone, 28 F. Supp. 2d 343,

356-357 (E.D. Va. 1998). (JA 333). He otherwise agreed

with the magistrate judge, however, and directed that the

writ issue on the grounds that the Virginia Supreme

Court had “contradicted more than one hundred years of

12

Virginia law” (JA 350-351) and that, in any event, relief

was warranted because, despite Ramdass’ parole eligi-

bility status under § 53.1-151(B)(1), “the trial court, pros-

ecution, and defense must have clearly understood that

Petitioner was subject to life without parole.” (JA 362).

The district court concluded that the Virginia Supreme

Court’s decision was an unreasonable application of

clearly established law and an unreasonable determina-

tion of the facts under 28 U.S.C. § 2254(d). {JA 363).

On the Director’s appeal to the United States Court

of Appeals for the Fourth Circuit, Ramdass argued that

this Court had not conditioned its rule in Simmons on a

state’s determination of parole ineligibility “at the

moment of sentencing.” (Brief of Petitioner, CA4 No.

98-30, 2/22/99, at 16). He argued that Simmons looked

rather to “the functional and common-sense possibility of

parole.” (Id.). He also argued that, contrary to the Vir-

ginia Supreme Court’s express interpretation of Virginia

law, § 53.1-151(B)(1) did not require that he be sentenced

on three qualifying convictions in order to be rendered

ineligible, but merely that he have been found guilty on

three qualifying offenses. (Id. at 20-21, n.9). Finally, he

argued that it was unfair to conclude that he was not

entitled to a no-parole instruction even if he was not

ineligible for parole at the time of his capital sentencing

because he would become ineligible “three short weeks

thereafter,” and because he “inevitably would reach a

point where he could never be considered for release.”

(Id. at 23, emphasis added). Again, however, Ramdass did

not articulate what be believed the jury should have been

instructed on the matter.

13

A three-judge panel of the Fourth Circuit reversed

the district court’s erroneous decision to grant the writ.

Ramdass v. Angelone, 187 F.3d 396 (4th Cir. 1999). (JA 380).

It held first that Simmons requires a determination of

whether the defendant is eligible for parole and that such

determination is a matter of state law, rather than the

federal issue defined by Ramdass as a “nonlegalistic

‘commonsense impossibility of parole.’” (JA 396-398).

Second, the Court of Appeals held that Ramdass’ nebu-

lous standard for determining parole was contrary to

Fourth Circuit precedent. (JA 398). Third, it held that, “as

a matter of simple logic,” any determination of a state

prisoner’s parole eligibility has no meaning beyond what

state law dictates. (JA 399).

Fourth, the Court of Appeals held that Ramdass’

proposed “standard” was not “clearly established” under

§ 2254(d)(1), and also ran afoul of the “new rule” doctrine

of Teagt.e v. Lane, 489 U.S. 288 (1989), because it asked for

an extension of what Simmons requires. (JA 399-400).

Finally, the Fourth Circuit held that Ramdass’ “insinua-

tion” that the Virginia Supreme Court had “acted craftily

in denying his Simmons claim” was completely

unfounded: the Virginia rule that a conviction cannot

count for parole eligibility purposes unless and until a

final sentencing order has been entered comports with

the “age-old rationale” that before negative consequences

(such as parole ineligibility) may be imposed based upon

a conviction, a defendant is accorded added protection by

a definition of “conviction” limited to orders which actu-

ally have been entered. (JA 401-403). In Ramdass’ case,

the Fourth Circuit accurately observed that the random

order in which his trials and sentencing proceedings had

14

taken place was entirely foreseeable, given the fact that

he had committed so many felonies in such a short period

of time. (JA 401).

Fourth Circuit Judge Murnaghan dissented on the

Simmons issue because, even though Ramdass was eligi-

ble for parole - and properly found to be so by the

Virginia Supreme Court (JA 414) — it was, in his opinion,

a “practical reality” that Ramdass would be parole inelig-

ible “upon entry of the Kayani [capital murder] convic-

tion.” (JA 415). Under Judge Murnaghan’s erroneous

interpretation of Virginia law, moreover, entry of the

Domino's Pizza conviction - the third qualifying convic-

tion under § 53.1-151(B)(1) - was nothing more than a

“ministerial act” mandated by state law. (Id.). Thus,

according to Judge Murnaghan and squarely contrary to

what the Virginia Supreme Court had ruled, it made no

difference to the application of § 53.1-151(B)(1) that the

judgment in the Domino’s Pizza case had not actually

been entered at the time Ramdass’ capital sentencing jury

asked its question about parole eligibility.

In his petition for rehearing filed in the Fourth Cir-

cuit, Ramdass adopted Judge Murnaghan’s argument

and, for the first time, expressly abandoned his other

arguments that supposedly demonstrated how the Vir-

ginia Supreme Court had erred in us interpretation of

Virginia law. (JA 425 n.2). The Fourth Circuit denied both

the petition for rehearing and the petition for rehearing

en banc. (JA 429-430).

In his petition for a writ of certiorari, Ramdass con-

tended that the Fourth Circuit had erred in ruling that

Simmons was limited by the state court’s determination of

15

parole eligibility, in ruling that he was denied no right

under Ake v. Oklahoma, 470 U.S. 68 (1995), and in its

application of § 2254(d). This Court granted certiorari but

limited its review to the Simmons issue alone. Ramdass v.

Angelone, 120 S.Ct. 784 (2000).

°

SUMMARY OF ARGUMENT

In Simmons, this Court created a new rule of criminal

procedure by which a defendant in a capital murder case

is entitled to answer the State’s argument for a finding of

future dangerousness by informing the jury that a life

sentence will render him ineligible for parole as a matter

of state law. In Ramdass’ case, the Virginia Supreme

Court held that, under Virginia Code § 53.1-151(B)(1), a

defendant must have three or more qualifying convic-

tions before losing parole eligibility and that a “convic-

tion” for purposes of the statute means a conviction upon

which final judgment has been entered by the trial court.

At the time Ramdass’ capital jury was deciding

whether to return a sentencing verdict of life or death,

Ramdass had been convicted of only one offense qualify-

ing under § 53.1-151(B)(1) and upon which a final judg-

ment had been entered. The Virginia Supreme Court held

that Ramdass’ sentence for capital murder thus could

count only as a second qualifying conviction under

§ 53.1-151(B)(1). It further held that a third offense upon

which a verdict of guilt had been rendered, but upon

which a final judgment had not been entered at the time

of the capital sentencing, did not qualify at the time of the

capital sentencing as a conviction for purposes of the

16

state statute. The Virginia Supreme Court therefore held

that Ramdass was not entitled under Simmons to provide

inaccurate information to the jury that a life sentence

would render him ineligible for parole.

Ramdass claims now that the rule in Simmons does

not depend upon the state court’s characterization of a

defendant's parole eligibility status and that a federal

court on collateral review may find, under a “functional”

view of parole eligibility, that a defendant was in fact

ineligible for parole despite the state court’s ruling to the

contrary. Ramdass’ claim, however, is an impermissible

request for an extension of Simmons that was neither

clearly established nor compelled by Simmons. The rule

he seeks thus is prohibited by both 28 U.S.C. § 2254(d)(1)

and by this Court’s “new rule” doctrine.

¢

ARGUMENT

THE RULE SOUGHT BY RAMDASS WAS NOT DIC-

TATED BY SIMMONS OR ANY CLEARLY ESTAB-

LISHED PRECEDENT AT THE TIME HIS CASE

BECAME FINAL.

A. Ramdass’ Claim

Ramdass always has conceded that, in order for him

to prevail under Simmons, he must demonstrate his parole

ineligibility. After the Virginia Supreme Court deter-

mined in 1994 that Ramdass was not entitled to relief

under Simmons because he could not have been rendered

parole ineligible by a life sentence for the capital murder,

Ramdass argued that the Virginia Supreme Court's parole

eligibility determination was a mistake.

17

At some point during his federal collateral case, how-

ever, he recognized that his challenge to the Virginia

Supreme Court’s determination of state law could not

result in federal collateral relief. He changed his

approach and asked the federal courts instead to rein-

terpret Simmons so as to afford him relief. Because he was

faced with the plain language of Simmons that clearly

predicates relief upon a determination of parole inel-

igibility under state law, Ramdass asked for a ruling that

would redefine ineligibility as a “common-sense impos-

sibility of parole” without regard to, and even in defiance

of, the state court’s express contrary determination of

eligibility under state law.

_ It is important to understand the scope of Ramdass’

claim. He is asking that federal habeas courts be autho-

rized to determine parole eligibility de novo, and even to

determine a matter of state law contrary to the highest

state court. Under the facts of his case, however, the effect

of granting his request would be to create a new right by

which a capital defendant in a future dangerousness case

would be entitled to inform his sentencing jury, not just

that a life sentence will render him ineligible for parole,

but also, under some “common sense” theory, about “any

possibility that he could be released on parole in the

future.” (Pet. Br. at 47).

To be precise, Ramdass claims that Simmons entitled

him to inform his sentencing jury of hypothetical future

developments which, under Virginia law, would render

18

him ineligible for parole if they occurred.> Ramdass urges

that, because one of those hypotheticals later came to

fruition in his case, he is now entitled to the benefits

under Simmons which would have existed if the hypo-

thetical had occurred prior to his capital sentencing pro-

ceeding. He asserts nothing less than that he was entitled

to tell his jury something that might occur simply because

it did occur later.

In the truest sense, he is claiming, not that he was

denied the right to tell his jury accurate information, but

rather that he was denied an opportunity to impart false

information. Ramdass’ jury already had been informed of

all accurate information: it knew that Ramdass had been

sentenced for the Pizza Hut robberies to seventy-six

years, that a jury had recommended an eighteen-year

sentence for the Domino’s Pizza robbery and that he had

not yet been tried for the Bragg Towers and taxicab driver

robberies. It also knew — because defense counsel told it

so — that Ramdass would spend tthe rest of his life in

prison as a result of all the sentences he would receive.

(JA 49-50, 85). What Ramdass now says he should have

been allowed to argue - that he would be ineligible for

parole on his capital murder conviction — simply was not

the truth.* Moreover, it is an obvious extension of the rule

5 See discussion below at pages 34-36, regarding Ramdass’

mischaracterization of the Domino’s Pizza conviction as

“inexorable” under Virginia law.

6 Because the jury had before it all the facts regarding

Ramdass’ other sentences and pending trials for the other

offenses, and because defense counsel was allowed to tell the

jury, without objection or rebuttal by the Commonwealth, that

his sentences would result in him spending the rest of his life in

19

in Simmons and therefore forbidden by the statutory stan-

dard of review that governs this collateral case.

B. The Standard of Review

Ramdass does not dispute that the standard of

review governing his claim is mandated by 28 U.S.C.

§ 2254(d).” In Lindh v. Murphy, 521 U.S. 320, 334 (1997),

this Court observed that § 2254(d) provides a “highly

deferential standard for evaluating state court rulings.”

In Terry Williams v. Taylor, No. 98-8384, this Court pres-

ently is considering the interpretation of § 2254(d)(1). In

Williams, the Warden has argued that § 2254(d)(1) abol-

ished de novo review by federal courts unless the state

court decision was patently unreasonable. In order to

obtain relief under § 2254(d)(1), the prisoner must show

either that the state court failed to select and apply a

clearly established federal law, i.e., the decision was “con-

trary to... ~,” or that the state court’s adjudication of

mixed questions of law and fact was so unreasonable that

all reasonable jurists would have felt compelled to rule in

the prisoner’s favor, i.e., the decision was an “unreason-

able application. . . . ” (See No. 98-8384, Resp. Br. at

25-30). Williams has argued that § 2254(d)(1) preserves de

prison, Ramdass cannot demonstrate the actual prejudice

necessary to a grant of federal habeas corpus relief. See Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (error must have “had

substantial and injurious effect or influence in determining the

jury’s verdict”).

7 His federal § 2254 petition was filed on February 14, 1997,

making the provisions of the 1996 Antiterrorism and Effective

Death Penalty Act (AEDPA), including § 2254(d), applicable to

his case. See Lindh v. Murphy, 521 U.S. 320, 326 (1997).

20

novo review and simply codifies this Court’s “new rule”

doctrine under Teague. (See No. 98-8384, Pet. Br. at 35).

The Fourth Circuit’s judgment in Ramdass’ case

encompasses both interpretations of the statute which are

currently under review in Williams.® Regarding

§ 2254(d)(1), the Fourth Circuit held,

[t]his statutory provision, which requires that

the state court decision at issue be inconsistent

with “clearly established Federal law, as deter-

mined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), “imports an anti-

retroactivity 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 doctrine of Teague. . . . In fact,

we have observed that the standard of

§ 2254(d)(1) is “even more stringent” than Tea-

gue. Weeks v. Angelone, 176 F.3d 249, 266 n.9 (4th

Cir. 1999). . . . Thus, either under Teague or

under § 2254(d)(1), Ramdass’ argument for an

extension of Simmons weuld fail.

(JA 399-400). Whether Ramdass’ case is reviewed under a

“stricter than Teague” view of § 2254(d)(1) or under Wil-

liams’ “Teague as is” view of § 2254(d)(1), the forthcoming

decision in Williams can have no significant effect on the

Fourth Circuit’s judgment.

Pursuant to the language of § 2254(d)(1), a writ of

habeas corpus “shall not be granted” to Ramdass unless

the Virginia Supreme Court's adjudication of his Simmons

claim “resulted in a decision that was contrary to, or

® Ramdass does not challenge the Fourth Circuit's

definition of the governing standard.

jt eee =

21

involved an unreasonable application of, clearly estab-

lished Federal law, as determined by [this] Court.”? Pur-

suant to the “new rule” doctrine, habeas relief may not be

granted unless it can be said that the Virginia Supreme

Court acted objectively unreasonably by not extending to

Ramdass relief under Simmons, see O'Dell v. Netherland,

521 U.S. 151, 156 (1997), or, put another way, that the

Virginia Supreme Court was compelled by Simmons to

rule in Ramdass’ favor. See Gray v. Netherland, 518 U.S.

152, 166 (1996). Examination of this Court’s decision in

Simmons, however, makes clear that, as the Fourth Circuit

found, the rule Ramdass seeks was neither “clearly estab-

lished” under § 2254(d) nor “compelled” under the “new

rule” doctrine.

C. The Rule in Simmons

The language in both the Simmons plurality opinion

and in Justice O’Connor’s concurring opinion?® could not

9 Section 2254(d)(2) also allows relief where the petitioner

demonstrates that the state court decision was based upon an

unreasonable determination of the facts. The district court

based its decision to grant relief on both (d)(1) and (d)(2).

However, as the Fourth Circuit explained, “the parole eligibility

determination is a question of law, not fact.” (JA 400). Indeed,

the facts relevant to the parole eligibility determination never

have been in dispute and Ramdass has abandoned any

argument now that he is entitled to relief under § 2254(d)(2).

That subsection thus is inapplicable to this case.

10 As Justice O’Connor supplied the necessary fifth vote

and concurred on grounds narrower than those of the plurality,

her concurrence is the controlling opinion. See Romano v.

Oklahoma, 512 U.S. 1, 9 (1994), citing Marks v. United States, 430

U.S. 188, 193 (1977).

22

be more explicit. Application of the “new rule” this Court

created in Simmons, see O'Dell, 521 U.S. at 166, was pre-

conditioned on two factors: (1) the prosecution must have

argued for the death penalty based upon the defendant's

“future dangerousness;” and (2) the defendant must be

rendered ineligible for parole by a life sentence. The only

factor at issue in Ramdass’ case is the latter: Ramdass

argues that parole eligibility is not limited by what the

state court says it is.

The language used in both the plurality and concur-

ring opinions of Simmons, however, simply forecloses

Ramdass’ contention. See Simmons, 512 U.S. at 156 (plu-

rality opinion) (limiting holding to cases where “state law

prohibits the defendant’s release on parole”); id. at 158

(noting that South Carolina officials had testified that

“any offender in petitioner’s position was in fact inelig-

ible for parole under South Carolina law”); id. at 162

(noting that Simmons had asked three times “to inform

the jury that in fact he was ineligible for parole under

state laws”); id. at 165 (defendant's ability to use parole

ineligibility to rebut a future dangerousness argument

depends “on the fact that he was legally ineligible for

parole”); id. at 165 n.5 (defendant entitled to rebut future

dangerousness “with the fact that he is ineligible for

parole under state law”); id. at 166 (noting that South

Carolina “admits that an instruction informing the jury

that petitioner is ineligible for parole is legally accurate”);

id. at 167 n.7 (reciting statutory law from thirty-seven

States regarding rules governing parole eligibility and

right to inform jury); id. at 168 (stating that, “[i]n a State

in which parole is available” the defendant has no right

=~ LL A Ac ear

23

to inform the jury); see also id. at 176 (O’Connor, J., con-

curring) (citing South Carolina statutes to demonstrate

that “the only available alternative sentence . . . was

life . . . without the possibility of parole”); id. (“In a State

in which parole is available, the Constitution does not

require (or preclude) jury consideration of that fact”); id.

at 178 (“the only alternative . . . under state law was

life . . . without possibility of parole”)."!

Indeed, this unmistakably clear language has led

numerous courts to conclude exactly as the Fourth Circuit

has concluded: Simmons does not extend to cases in

which the defendant would be eligible for parole upon a

life sentence under state law. See, e.g., Miller v. Johnson,

200 F.3d 274, 290-291 (Sth Cir. 2000); Coe v. Bell, 161 F.3d

320, 346 (6th Cir. 1998), cert. denied, 120 S.Ct. 110 (1999);

Ingram v. Zant, 26 F.3d 1047, 1054 n.5 (11th Cir. 1994) (per

curiam), cert. denied, 513 U.S. 1167 (1995); State v. Bey, 736

A.2d 469, 502 (N.J. 1999); State v. White, 709 N.E.2d 140,

156 (Ohio), cert. denied, 120 S.Ct. 345 (1999); State v. Bill-

ings, 500 S.E.2d 423, 427 (N.C.), cert. denied, 525 U.S. 1005

(1998); State v. Feaster, 716 A.2d 395, 441 (N.J. 1998);

Griffith v. State, 983 S.W.2d 282, 289 (Tex. Crim. App.

i 198), cert. denied, 120 S.Ct. 77 (1999); State v. Bush, 942

S.W.2d 489, 503 (Tenn.), cert. denied, 522 U.S. 953 (1997);

Philpot v. State, 486 S.E.2d 158, 160 (Ga. 1997), cert. denied,

522 U.S. 1054 (1998); State v. Simpson, 479 S.E.2d 57, 61

™ Ramdass asserts that the Fourth Circuit incorrectly

“assum(ed] that [state law] circumscribe[s] the federal right.”

(Pet. Br. at 19). As demonstrated in the text, however, it was

Simmons itself that defined the federal right in terms of a status

created by state law.

24

(S.C. 1996), cert. denied, 520 U.S. 1277 (1997); Oken v. State,

681 A.2d 30, 41 (Md. App. 1996); State v. Montez, 927 P.2d

64, 74 (Ore. 1996), cert. denied, 519 U.S. 1079 (1997).

Nothing in Simmons supports an argument allowing a

federal habeas cout to decide de novo the state law issue

of whether a defendant will be made ineligible for parole

by a life sentence or, as here, to redetermine the eligibility

issue contrary to the express ruling of the state supreme

court. Ramdass does not cite any authority that supports

his novel theory. Instead, he attempts to evade the clear

import of Simmons by reference to cases which, not only

have nothing to do with the particular rule in Simmons,

§ 2254(d) or the “new rule” doctrine, but which are

wholly inapposite on any level.!?

"2 Ramdass’ “custody” analogy, for example, is irrelevant

to the rule in Simmons. In Miranda v. Arizona, 384 U.S. 436 (1966),

and subsequent cases, this Court has defined the familiar rule

requiring specific warnings prior to police initiated custodial

questioning as applying when a reasonable person would feel

he was not free to leave, and has held the issue of “custody” to

be a federal question of mixed fact and law. See Thompson v.

Keohane, 516 U.S. 99, 112 (1995). That rule obviously has no

connection, in principle or application, to the issue of whether a

federal court may redetermine state parole law for the purpose

of instructing a state court capital sentencing jury. Even further

removed from the present case is the interpretation of the “in

custody” provision of § 2254(a). That term has been broadly

construed by this Court so as to give federal courts jurisdiction

over habeas petitions filed by state prisoners; it never has been

circumscribed by state law. See Spencer v. Kemna, 523 U.S. 1, 7

(1998).

25

As an initial matter, the reason Ramdass’ analogies

fail is that his underlying premise is simply wrong. Con-

trary to his contention, the rule in Simmons is not one

involving “federal law [that] overlays state laws,”

depending “on the operational consequences of state-law

rules, not on the characterization that a state court or

legislature puts on those rules.” (Pet. Br. at 28). As the

above-cited passages from Simmons make clear, it is pre-

cisely the defendant's legal status under state law that

triggers the due process right to inform the jury. That due

process right is wholly dependent upon how state law

defines the prisoner’s parole eligibility status, as plainly

expressed repeatedly in both the plurality and concurring

opinions of Simmons.

Moreover, the Fourth Circuit accurately observed

that,

as a matter of simple logic, the fact that a defen-

dant will have no possibility of parole if given a

life sentence can only stem from the legal con-

clusion that state law bars eligibility for parole.

Because parole eligibility is entirely a creature of

state law, Ramdass’ conception of practical or

functional parole eligibility must inevitably col-

lapse into a determination of state law.

(JA 399). Put another way, Simmons recognized that

parole eligibility can have no meaning outside of what

state law says it means. Whether thought of in terms of

“practical,” “functional” or “technical,” an inmate is

either eligible for parole or he is not. Whether looked at

as a definitional or result-oriented matter, the “opera-

tional consequences” of state parole eligibility law are

absolutely equivalent to its “characterization” by the

26

state court. There are no gray areas of parole eligibility:

the inmate’s sentence or sentences either render him inel-

igible for parole under state law or they do not.

Indeed, were the rule in Simmons somehow divorced

from the defendant's parole eligibility under state law, it

would have no workable meaning at all, much less any

practical means by which it could be applied or even

reviewed. If, as Simmons holds, a defendant may inform

his jury that a life sentence will render him ineligible for

parole, then state law must determine whether the defen-

dant would be ineligible and, therefore, whether the Sim-

mons rule applies.'%

Furthermore, Ramdass’ collection of cases involves

the wholly irrelevant issue of whether a state law itself

violates the Constitution.'* Ramdass, however, never has

13 Ramdass suggests that constitutional error occurred

because the jury’s exact question was not answered. (Pet. Br. at

27). The right created in Simmons, however, is not dictated by

whether or what a jury asks; rather, it narrowly defines the

parameters of what information a court must allow to be

imparted to the jury about parole by way of rebuttal: if the

defendant requests, the jury must be informed that a life

sentence will result in parole ineligibility. A jury may have

many legitimate concerns, e.g., whether there is generally a

possibility of release, whether the sentence may be commuted,

whether the defendant will be held in a maximum security

center, whether he will have contact with visitors, whether he

will have access to weapons, etc. However, the only information

regarding post-conviction procedures that this Court has

mandated must be imparted to the jury is, where applicable,

parole ineligibility.

14 Bakery & Pastry Drivers & Helpers v. Wohl, 315 U.S. 769

(1942), a First Amendment case, reversed a state court ruling

27

challenged the constitutionality of the Virginia parole

eligibility statute or the Virginia Supreme Court’s parole

eligibility determination. (Pet. Br. at 20: “Virginia can

define [its statute] however it wishes, and Ramdass will

have no federal basis for complaint”). Under Simmons, a

State is free either to provide or prohibit parole eligibility

for inmates, as well as to define by statute the factors

triggering ineligibility. Certainly nothing in Simmons cur-

tails the State’s right to qualify or disqualify an inmate

for parole eligibility. Indeed, unlike the cases cited by

that no First Amendment rights attached unless there was a

labor dispute. Bailey v. Alabama, 219 U.S. 219 (1911), a direct

appeal case, invalidated under the Thirteenth Amendment a

state statute that made criminal the failure to pay a debt.

Mullaney v. Wilbur, 421 U.S. 684 (1975), a pre-“new rule” federal

habeas case, held that, under In re Winship, 397 U.S. 358 (1970), a

state may not place the burden of proof of lack of malice upon

the defendant, even if malice is not an element of the crime

under state law. Hicks v. Feiock, 485 U.S. 624 (1988), simply

remanded a contempt conviction to state court to determine

whether the proceeding was criminal or civil and to vacate the

conviction as a result of a burden-shifting presumption only if

found to be criminal. Memphis Steam Laundry Cleaners v. Stone,

342 U.S. 389 (1952), a Commerce Clause case, found a state tax

discriminated against interstate commerce under any definition

of the tax. Railway Express Agency v. Virginia, 347 U.S. 359, 369

(1954), another Commerce Clause case, likewise found a state

tax to be an impermissible “privilege” tax, partly because the

state legislature had so labeled it. Henderson v. Mayor, 92 U.S.

259 (1875), yet another Commerce Clause case, held that a New

York law imposing a fee for each foreign passenger arriving

there was a tax in contravention of free commerce. Collins v. New

Hampshire, 171 U.S. 30 (1898), still another Commerce Clause

case, struck down a state law making it a crime to sell

oleomargarine unless colored pink because the law was, in

effect, a prohibition on the sale of oleomargarine.

28

Ramdass in which state laws conflicted with specific con-

stitutional provisions, a determination of parole eligi-

bility does not conflict with, or even implicate, the

Constitution. See Greenholtz v. Nebraska, 442 U.S. 1, 7

(1979) (the Constitution creates no liberty interest in dis-

cretionary parole). A State’s law establishing parole eligi-

bility or ineligibility cannot result in the denial of due

process articulated in Simmons because the due process

right is itself defined by the state law governing eligi-

bility.

Simmons, of course, discusses at length the wide vari-

ety of state statutes governing parole eligibility. See Sim-

mons, 512 U.S. at 167 n.7 (plurality opinion). The Virginia

Supreme Court applied its own statute and ruled that

Ramdass could not have informed his jury that he would

be rendered ineligible on a capital murder conviction

precisely because that conviction would not have ren-

dered him ineligible under § 53.1-151(B)(1). The Virginia

Supreme Court’s ruling certainly did not impugn any

constitutional provision.

Simmons specifically contemplated the result

obtained here: “In a State in which parole is available, the

Constitution does not require (or preclude) jury consider-

ation of that fact.” Simmons, 512 U.S. at 176 (O’Connor, J.,

concurring); accord 512 U.S. at 168 (plurality opinion). It

thus expressly conditioned its new due process rule upon

a determination under state law of parole ineligibility.

Because the Virginia Supreme Court authoritatively

determined that Ramdass would not have been ineligible

for parole under Virginia law, the rule in Simmons simply

affords him no relief.

me ee ee eee eee ee —————

——= —_ ——

29

D. Virginia Law

Ramdass admits, as he must under the clear language

of Simmons, that state law determines his parole eligi-

bility status. According to his theory, however, there are

two kinds of state law: one determined by the state

supreme court and another determined by a federal

court. As his argument goes, the Virginia Supreme Court

was free to find what the “technical” law was, but only

the federal court may define the “real” state law for

purposes of Simmons. In the final analysis, Ramdass’

novel theory is nothing more than a surreptitious attempt

to demonstrate the impossible: that the Virginia Supreme

Court was wrong on a matter of Virginia law.'5 This, of

course, contravenes decades of settled precedent holding

that state courts are the sole and final arbiters of state

law. See, e.g., Hopkins v. Reeves, 524 U.S. 88, 94-101 (1998);

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers,

497 U.S. 764, 780 (1990); Engle v. Isaac, 456 U.S. 107, 119

(1982); Gryger v. Burke, 334 U.S. 728, 731 (1948).

1S The Fourth Circuit accurately observed that Ramdass

never contested the Virginia Supreme Court's parole eligibility

determination in state court. (JA 390). However, ... \use

Ramdass had made “the broader, more basic claim” of {.mmons

error in state court, the Fourth Circuit rejected the respondent's

default argument. (Id.). Ramdass no longer directly contests the

validity of the Virginia Supreme Court’s determination, but

rather argues indirectly that a federal court is free to find parole

eligibility under his nebulous theory of “functional! and

common sense ineligibility.”

30

As the Fourth Circuit aptly held,

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 consti-

tutes 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.

(JA 401).!° The Fourth Circuit went on to make clear,

however, that, even if it could reinterpret Virginia law, it

“would be unpersuaded by Ramdass’ argument that the

Virginia Supreme Court adopted an artful, form-over-

substance interpretation of the three-strikes statute to

thwart his Simmons claim.” (Id.).

The Court of Appeals’ analysis unquestionably was

correct. The Virginia Supreme Court interpreted Virginia

Code § 53.1-151(B)(1) in a straightforward manner: before

an inmate can be disqualified from parole eligibility, he

16 Unquestionably, the gravest error committed by both the

magistrate judge and the district court was the unprecedented

holding that a federal court was empowered to overrule a state

supreme court on a matter of state parole law based on the

mistaken view that the Virginia Supreme Court had

“contradicted more than one hundred years of Virginia law.”

(JA 350-351).

31

must have three convictions for separate offenses of mur-

der, rape or armed robbery and the convictions may not

be considered unless and until final judgment has been

entered. (JA 130-131). The state court ruled that Ramdass

would not have been disqualified from parole eligibility

by a life sentence for capital murder because that offense

only could have counted as the second qualifying convic-

tion under the statute. (JA 130). It further held that, under

Smith v. Commonwealth, 113 S.E. 707, 709 (Va. 1922), a

“conviction” means the entry of final judgment. Thus, the

Domino’s Pizza guilty verdict could not count as one of

the three required convictions because no final judgment

had been entered at the time Ramdass’ capital jury was

deciding what sentence to impose. (JA 131).

This ruling was beyond reproach. No Virginia prison

or prison official may exert any control over any person

until that person has been both convicted of a felony and

sentenced to serve at least one year in prison. Va. Code

§ 53.1-20 (custody over persons convicted of felony and

sentenced to a year or more); § 19.2-310 (persons not

transferred to prison until sentenced by court).!7 More-

over, as the Fourth Circuit observed,

17 It is only capital murder defendants who ever will want

to expedite the finding of parole ineligibility to the earliest

possible time. Only such defendants can hope to obtain

perverse benefit from the State’s determination that, by virtue

of repeated and violent crimes, the defendant is too dangerous

ever to be released on parole. The vast majority of a State’s

inmates will seek to stave off a finding of parole ineligibility to

the last possible moment. The Virginia Supreme Court is

charged with interpreting state law which is equally applicable

to all inmates, not just capital felons.

32

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) (requiring an entry of judgment signed

by the judge). Even though Smith's factual pred-

icate is wholly unrelated to parole eligibility, the

age-old rationale underlying its definition of

conviction is designed to protect defendants.

Requiring the entry of judgment - even if it

appears to be only a formal step of the process —

in contexts in which additional negative conse-

quences are to be imposed based on the convic-

tion, provides an additional layer of procedural -

protection against unfairness or corruption.

* » »

As a type of forfeiture, parole ineligibility fits

neatly within the narrow circumstances in

which the Smith definition of conviction is

appropriate, or even necessary. Upon amassing

a given number of convictions for certain

crimes, a defendant forfeits his right to be con-

sidered for parole under the standard operation

of the parole system. This is precisely the kind

of serious deprivation that should not occur

without the solemn imprimatur of the court's

entry of judgment on the decision of the jury.

(JA 402-403).1§

18 Despite the district court’s finding that Ramdass’

“arbitrary Virginia Supreme Court” claim was defaulted (JA

333), the Fourth Circuit rejected it on the merits “only in an

effort to dispel Ramdass’ insinuation that the Virginia Supreme

Court acted craftily in denying his Simmons claim.” (JA 403; see

also Pet. Br. at 27: “The Virginia Supreme Court's . . . avoidance

of the rule in Simmons . . . leaves an important federal due

~ ee -_—

— ee I ee

33

Ramdass, however, urges this Court to find as fol-

lows: even though state law requires a final sentencing

order before the conviction can count towards parole

ineligibility and, even though the Domino’s Pizza case

had no final sentencing order yet entered, it makes no

sense to count the Pizza Hut conviction and not the

Domino’s Pizza verdict because they both had the same

chance of being set aside by the trial judges under a Rule

of Court. (Pet. Br. at 37-38). As if this remarkable illogic

were not enough, Ramdass then simply misstates the

record by arguing that the Virginia Supreme Court “rec-

ognized” this “setting aside” theory, “dismissed” it as a

“hypothetical future development” and yet inconsistently

accepted it with respect to the Domino’s Pizza verdict.

(Id. at 38).9

process right subject to . . . manipulable state-court

characterizations of state law”). As the Court of Appeals noted,

such an argument also is defeated by the fact that, in a

contemporaneous case, the Virginia Supreme Court had vacated

the inmate’s death sentence and remanded for resentencing

because it found the inmate to have been parole ineligible and

thus entitled to a Simmons instruction. (JA 403). See Mickens v.

Commonwealth, 457 S.E.2d 9 (Va. 1995). Significantly, Ramdass

no longer relies upon Virginia case law that he cited in the

Fourth Circuit. That case law, as it turned out, actually proved

that over one hundred years ago the Virginia Supreme Court had

recognized that the word “convict,” when used in statutes

relating to prisons, meant “adjudged guilty of felony by the

final judgment of the Court.” See Blair v. Commonwealth, 66 Va.

850, 858 (1874) (emphasis added).

19 The district court carried this illogical reasoning even

further, finding as Ramdass had argued in that court that there

was “no logical reason” why the Virginia Supreme Court would

count the capital murder conviction as one of the three

necessary strikes while not counting the Domino’s Pizza

34

Whatever Ramdass means by setting up this straw-

man, what is clear is that it played no part in the Virginia

Supreme Court’s decision. The “setting aside” argument

was neither made nor considered in state court. The

Virginia Supreme Court's decision was based solely upon

the state law determination that § 53.1-151(B)(1) allows

consideration of convictions upon which judgment has

been entered, but does not allow consideration of convic-

tions upon which no judgment has been entered. Whether

or not such a judgment may be overturned or set aside

afterwards is completely irrelevant to the issue of

whether it may be counted in the first place under

§ 53.1-151(B)(1). Final sentencing is the sine qua non of

Virginia’s parole eligibility statute. Without a final sen-

tencing order, the offense cannot disentitle an inmate to

parole eligibility.

robbery. (JA 357). Ramdass appears to have dropped this

nonsensical argument in favor of Judge Murnaghan’s equally

weak reasoning in his dissent. (JA 415). Obviously, the capital

murder must be counted as if final judgment had been entered

because the essence of a Simmons instruction is to inform the

jury with certainty as to what will occur if the jury imposes a life

sentence and that becomes the judgment. Just as obvious,

however, is the fact that the reason the Pizza Hut convictions

counf and the Domino’s Pizza verdict did not was because, as

the Virginia Supreme Court held, a judgment had been entered

on the former and not the latter. Under the defective reasoning

of Judge Murnaghan, the district court and Ramdass, no

conviction could count under § 53.1-151(B)(1) as long as it was

subject to any form of reversal, e.g., motion for new trial,

appellate or habeas review. Of course, such is not the case: the

Virginia Supreme Court simply and reasonably held that the

point at which a conviction may count towards parole

ineligibility is when the final judgment has been entered.

35

Ramdass’ view of Virginia law, while irrelevant to the

validity of state law as authoritatively explicated by the

Virginia Supreme Court, nevertheless is dead wrong.

Ramdass contends repeatedly that the Domino’s Pizza

final judgment was “foreseeable, imminent and inexor-

able.” He mischaracterizes the entry of that judgment as a

“ministerial act,” a mere “formality” or “technicality.”

Nothing could be further from the truth.

At the time the Fairfax jury was deciding whether to

sentence Ramdass to death on January 30, 1993, Ramdass

was awaiting sentencing on the Alexandria Domino’s

Pizza case. State law clearly gave the Alexandria judge

the unfettered authority to set aside the guilty verdict

under Virginia Supreme Court Rule 3A:15(b), a fact Ram-

dass concedes. (Pet. Br. at 17 n.5). Indeed, in Virginia, a

trial judge is vested with the total - and unreviewable -

discretion to set aside a jury’s verdict. A decision to

acquit or vacate is not appealable or subject to man-

damus: the Commonwealth is without a remedy to chal-

lenge such a decision in any way. See Va. Const. Art. VI

§ 1 (“no appeal shall be allowed to the Commonwealth in

a case involving the life or liberty of a person”); Campbell

v. Commonwealth, 431 S.E.2d 648, 655 (Va. 1993) (noting

that no appeal by Commonwealth permitted in a criminal

case except under very limited conditions: Va. Code

§§ 19.2-317, -398 allow appeals in criminal cases involv-

ing the state revenue and from pretrial orders holding a

statute unconstitutional or suppressing evidence under

the Fourth, Fifth or Sixth Amendments).2°

20 On January 1, 1997, the Virginia Constitution was

amended to allow the Commonwealth to appeal in criminal

36

Ramdass contends it was “inconceivable that [he]

would somehow escape judgment” on the Domino’s

Pizza case. However, there was nothing to prevent him

from arguing in that case, or the Alexandria judge from

concluding, that, in light of the death sentence already

imposed, it would have been overkill to convict him of

robbery. Or, because Ramdass’ crime spree involved mul-

tiple serious offenses occurring in different jurisdictions,

the prosecutors in the other jurisdictions simply could

have decided not to pursue the other cases in light of the

death sentence already obtained in Fairfax. The Alex-

andria prosecutor certainly had the discretion to inform

the court that the Domino’s Pizza case would not be

pursued.

Ramdass’ “ministerial” argument is squarely in con-

flict with Virginia criminal procedure.?! A final judgment

on the Domino’s Pizza case was no more “inexorable”

than a judgment in the as-yet-to-be-tried cases involving

the Alexandria Bragg Towers robbery, the Arlington taxi-

cab robbery or the Alexandria murder. Under Ramdass’

faulty reasoning, he would have been entitled to a Sim-

mons instruction simply because he was planning to plead

cases to the extent permitted by the General Assembly and

- Constitution. 1996 Va. Acts cc. 40 and 911. In 1997, the General

Assembly expanded the Commonwealth’s right to appeal in

criminal cases to include an appeal from a pretrial bail order, Va.

Code § 19.2-398(B), and an appeal to the Virginia Supreme Court

from an adverse ruling by the Virginia Court of Appeals. Va.

Code § 19.2-317.

21 Judge Murnaghan based his dissent, in large part, upon

the same misinterpretation of Virginia law. (JA 415).

37

guilty in those other three cases, a result certainly not

contemplated by Simmons.

Not surprisingly, Ramdass never has articulated the

instruction he believes Simmons entitled him to give the

jury. This is because the hypothetical instruction that

would have had to have been given in Ramdass’ case in

order to convey accurate information to the jury demon-

strates how far removed Ramdass’ case is from Simmons.

In order to impart accurate information to the jury about

Virginia law, an instruction would have had to have

stated:

You are instructed that the conviction in this

case will count as the second of three convic-

tions necessary to make the defendant ineligible

for parole under state law and that, therefore, if

you choose a life sentence, that sentence will not

render the defendant ineligible for parole.

In another court, however, the defendant has

been tried by a jury and found guilty of another

offense but a judgment of conviction has not yet

been entered in that case. Under Virginia law,

the court in that case is authorized to set aside

that guilty verdict or retry the case before a final

judgment is entered.

If the court in that case enters a judgment of

conviction upon the jury’s verdict, it would

count as a third conviction making the defen-

dant ineligible for parole for that conviction.

However, if the court in that case decides to set

aside or retry, or for any other reason does not

enter judgment, the jury’s verdict in that case

could not render the defendant ineligible for

parole if you elect to fix punishment at life.

38

Nothing in Simmons even remotely requires imparting

such speculative, contingent information to a capital sen-

tencing jury. As the Fourth Circuit observed, the most

Ramdass is left with is a complaint

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 rob-

bery, the Kayani murder and robbery, and sev-

eral other potentially qualifying offenses within

several days of each other, the random order in

which he was tried for these various offenses

was entirely foreseeable, dictated only by the

docket of the relevant county court. Ir fact, it is

equally possible that Ramdasy could have been

tried on the most serious charge — the Kayani

murder - 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.

(JA 401-402).22 The Court of Appeals was correct that

Ramdass has no more valid a claim now than he would

have had if he had been tried for the capital murder first.

He was eligible for parole under state law unless and

until a third conviction was entered as a final judgment.

22 Ramdass could have asked the trial court for a

continuance or for any other relief he believed appropriate

regarding the consequences of the scheduling of his trials, but

he made no such motion or objection.

39

Unless a capital murder conviction would constitute the

third or subsequent strike, the jury could not be

instructed accurately that such a conviction would result

in parole ineligibility.>

E. The Virginia Supreme Court’s Decision Was

Not Contrary to Clearly Established Law.

The very fact that the Virginia Supreme Court deter-

mined that Ramdass could not have been disqualified

from parole eligibility under § 53.1-151(B)(1) by virtue of

his capital murder conviction removes this case from the

bounds of Simmons. In Simmons, there was no dispute

over the inmate’s parole eligibility status. State officials

had testified that Simmons was ineligible for parole and

the prosecution conceded that fact, although it sought to

23 Ramdass notes that he could not have been released

during the three weeks between his capital sentencing and entry

of the Domino’s Pizza judgment because under § 53.1-151(A), he

would have been required to serve at least twelve years of his

sentences from the Pizza Hut robberies before becoming eligible

for parole. (Pet. Br. at 25 n.6). From this fact, he reasons that,

“from the date of the capital sentencing trial forward,” he was

ineligible for parole. (Id.). This faulty syllogism, however, only

underscores Ramdass’ mi tion of Simmons. There is no

doubt that, on the day of sentencing, no capital murderer will be

eligible for release, but that fact is irrelevant under Simmons.

The information that a defendant is entitled to tell the jury is not

that he will not be released before sentence is imposed, but

rather that he will be ineligible for parole on the jury’s sentence

of life. Under § 53.1-151(C), the most Ramdass’ jury accurately

could have been told with respect to parole eligibility

classifications for a life sentence on the capital crime was that

Ramdass would have become eligible for parole after serving

twenty-five years of a life sentence.

40

demonstrate that Simmons would be eligible for other

forms of release. See Simmons, 512 U.S. at 158 (plurality

opinion). Simmons was ineligible for parole and thus

entitled to relief whereas Ramdass was eligible for parole

and thus not entitled to relief.

Ramdass discusses at length what South Carolina

supposedly argued in Simmons. According to Ramdass,

South Carolina argued that Simmons had not yet been

found to be ineligible for parole, this Court rejected that

position and then independently found Simmons to be

ineligible. (Pet. Br. at 40-41). Ramdass is wrong.** But,

even accepting such a spin on Simmons as hypothetically

true, that circumstance could have no impact on Ram-

dass’ case because the Virginia Supreme Court has found

as a matter of state law that Ramdass was not ineligible

for parole.

The most fundamental difference between Simmons

and Ramdass’ case, however, is implicitly acknowledged

in Ramdass’ off-repeated refrain that his Domino’s Pizza

conviction was “foreseeable, imminent, and inexorable.”

24 Neither the transcript of oral argument in Simmons nor

the brief of the State of South Carolina supports the contention

that South Carolina argued that Simmons was “technically”

eligible for parole. What South Carolina argued was that “this

defendant, or any defendant sentenced to a life without parole

sentence” nevertheless could be eligible for other forms of

release. Simmons, Tr. of Oral Arg., 1994 U.S. TRANS LEXIS 133 at

42 (Jan. 18, 1994). In its brief, the State pointed out that only the

Parole Board could determine eligibility, see Simmons, Resp. Br.

at 95, but it did not argue, as Ramdass has alleged, that

Simmons was not ineligible “until the parole board said so.”

(Pet. Br. at 40). To the contrary, as this Court is well aware, South

Carolina conceded that Simmons was ineligible for parole.

41

As he must, even Ramdass recognizes in this refrain that, _

while Simmons had been sentenced for a prior offense

qualifying under South Carolina’s statute and thus

would have been rendered ineligible for parole by the

capital murder conviction, Ramdass had not been sen-

tenced for the Domino's Pizza crime and his capital sen-

tence thus would have counted only as the second of

three convictions required by state law. (Pet. Br. at 21, 36).

Ramdass’ claim and the rule in Simmons are hope-

lessly at odds: there simply is no support in Simmons for

the proposition that a state court’s determination of

parole eligibility may be overturned in federal court by a

“functional” or “practical” definition of eligibility. The

question before this Court, however, is not whether it is

possible to glean such an interpretation of the law from

Simmons, but rather whether, at the time of the Virginia

Supreme Court’s decision, such an interpretation was

“clearly established Federal law, as determined by [this]

Court.” See § 2254(d)(1). Given the plain language in

Simmons repeatedly stressing that parole ineligibility is a

matter of state law, conditioning its new rule upon a state

law determination, and the complete absence in Simmons

of any warrant for the nebulous standard Ramdass pro-

poses, it simply cannot be said that a “functional” inter-

pretation of parole ineligibility was “clearly established.”

Further, in the related “new rule” context, this Court

has held that an important measure of whether the state

court “acted objectively unreasonably” is whether the

25 The South Carolina statute rendered inmates ineligible

for parole upon sentencing for a second qualifying offense. See

Simmons, 512 U.S. at 158 n.2 (plurality opinion).

42

prisoner’s claim was “susceptible to debate among rea-

sonable minds.” O'Dell, 521 U.S. at 160, quoting Butler v.

McKellar, 494 U.S. 407, 415 (1990). If an issue is “suscept-

ible to debate,” then a fortiori, it could not have been

“compelled” by precedent. Butler, 494 U.S. at 414.

Ramdass’ claim undeniably is “susceptible to debate”

even today. The rule ne seeks would extend Simmons to

any case in which a capital defendant may become inelig-

ible for parole depending on the occurrence of events

outside the parameters of the case being tried. And,

although he denies that he is asking to inform the jury

about his “prospects for parole” (Pet. Br. at 38 n.8), there

is no principled way to so limit the rule he seeks. If due

process entitles him to tell the jury that it is highly

unlikely he will be paroled because he probably will be

made ineligible by hypothetical future convictions, then

he also should be able to tell the jury that it is highly

unlikely he will be paroled because he will not become

eligible for many years, possibly not until after his

expected lifespan, or because he is such a dangerous

individual that there is no “practical possibility” that any

parole authority would release him. While this Court

conceivably could extend the concept of “due process” in

this manner in a direct appeal case like Simmons, it cannot

do so in a collateral case.

That such a rule is “susceptible to debate” and, thus,

an impermissible new rule cannot be denied. In Brown v.

Texas, 522 U.S. 940, 118 S.Ct. 354 (1997), Justice Stevens

was joined by three other Justices in questioning whether

the rule in Simmons should extend to defendants who are

eligible for parole. 118 S.Ct. at 355-356. If that question is

“susceptible to debate” in this Court years after Simmons

43

was decided, then Ramdass’ claim asking for Simmons to

apply to him despite the Virginia Supreme Court's deter-

mination of parole eligibility certainly is “susceptible to

debate” and, thus, new. See Moore v. Reynolds, 153 F.3d

1086, 1115 (10th Cir. 1998) (declining to decide in pris-

oner’s favor whether Simmons applies to parole eligible

defendants because issue is “arguable” after Brown v.

Texas, and, therefore, “new”).

Section 2254(d)(1) and the “new rule” doctrine com-

bine to mandate that a state court’s judgment will not be

reversed in a federal collateral proceeding unless the

prisoner’s claim was “clearly established” and “com-

pelled” by this Court’s precedent at the time of the state

court’s decision. The Fourth Circuit properly applied

these clear mandates. The Virginia Supreme Court's deci-

sion that Simmons did not require a no-parole instruction

in Ramdass’ case was not contrary to or an unreasonable

application of this Court’s clearly established precedent; a

fortiori, neither was the rule Ramdass seeks compelled or

dictated by such precedent.

S

44

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted:

RONALD J. ANGELONE, D1RECTOR,

Respondent herein

Mark L. Ear.ey

Attorney General of Virginia

KATHERINE P. BALDWIN

Assistant Attorney General

Counsel of Record

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624

la

1/30/93

APPENDIX A

OFFENSE DESCRIPTION DATE OF | TRIAL JUDGMENT

OFFENSE

purse-snatching, juvenile offenses punished as

drug dealing, juvenile

stealing moped,

breaking & entering, asin selon

escape

robbery Fairfax - no juvenile - 1988 - 7 years

deadly weapon tried as aciacaieas

adult

murder Alexandria -not | 7/15/92 guilty plea 10/7/93 -life

capital after capital | sentence run

judgment concurrent

with other

sentences

robberies Fairfax Pizza Hut | 8/25/92 jury trial 1/22/93 - 76

—- w/deadly before capital | years

weapon trial

robbery Alexandria Bragg | 8/29/92 guilty plea 2/18/93 - 14

Towers - after capital | years

w/deadly judgment

weapon

attempted murder Arlington taxicab | 8/30/92 guilty plea 11/3/93 -2

and robbery driver - after capital | life sentences

w/deadly judgment run concurrent

weapon with other

: sentences

robberies Alexandria 8/30/92 jury trial 2/18/93 - 18

Domino’s Pizza - 1/7/93 years

w/deadly

weapon

capital murder and Fairfax 7-Eleven | 9/2/92 jury 4/2/93 - death

robbery sentencing- | penalty