Affirmed by Supreme Court on June 12, 2000.
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BOBBY LEE RAMDASS,
Petitioner-Appellee,

v.
                                                                        No. 98-30
RONALD J. ANGELONE, Director,
Virginia Department of Corrections,
Respondent-Appellant.

BOBBY LEE RAMDASS,
Petitioner-Appellant,

v.
                                                                        No. 98-32
RONALD J. ANGELONE, Director,
Virginia Department of Corrections,
Respondent-Appellee.

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

Argued: May 4, 1999

Decided: August 3, 1999

Before WIDENER, MURNAGHAN, and NIEMEYER,
Circuit Judges.

_________________________________________________________________

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

ARGUED: Katherine P. Baldwin, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellant. F. Nash Bilisoly, IV, VANDEVENTER BLACK, L.L.P.,
Norfolk, Virginia, for Appellee. ON BRIEF: Mark J. Earley, Attor-
ney 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.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

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

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

I

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

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

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

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

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

When they got in the car, Ramirez heard Ramdass ask
Wilson, "Why didn't you get rid of the people on the floor?"

          3
         After the men divided the robbery proceeds at Singh's
         home, Ramdass told Ramirez, "Don't tell anybody about
         this [or] I'll kill you and I'll kill your whole family."

         Singh, a co-owner of the gun with Ramdass, testified that
         the gun would not fire unless held at a certain angle because
         the "bullets" in the chamber were not the right size for the
         gun. Julian Jay Mason, Jr., a forensic scientist specializing
         in firearms identification, later examined and test fired the
         gun. Mason testified that the 9 millimeter cartridges Ram-
         dass used in the gun were smaller than the 38 caliber car-
         tridges specified for the gun. Therefore, when the gun's
         muzzle was pointed down, the 9 millimeter cartridges slid
         too far forward to be struck by the firing pin. Mason further
         testified that when the muzzle was pointed up, the cartridge
         slid back closer to the firing pin, and the gun could be fired.

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

At the sentencing phase of trial, the Commonwealth of Virginia
sought the death penalty, arguing that Ramdass presented "a continu-
ing serious threat to society" -- the "future dangerousness" predicate
for imposition of the death penalty. See Va. Code Ann. § 19.2-264.2.
In support of this argument, the Commonwealth presented evidence
of Ramdass' history of theft-related crimes beginning at age 14 and
his pattern of recidivism during periods of escape or probation. More
specifically, the prosecution detailed how, within three months of his
release on mandatory parole after serving four years of a seven-year
sentence for robbery, Ramdass committed a series of at least six
armed robberies. The first two robberies occurred on August 25,
1992, when Ramdass robbed a Pizza Hut in Fairfax County, abduct-
ing a woman and hitting a man. Four days later, he robbed a clerk at
an apartment-hotel in Alexandria and struck him in the head with a
gun. On August 30, 1992, he shot and robbed a cab driver. Later that
evening, he robbed a clerk at a Domino's Pizza in Arlington. Finally,
Ramdass killed Mohammed Kayani on September 2, 1992, during the

                    4
sixth robbery in this eight day spree. See Ramdass I, 437 S.E.2d at
574. Ramdass' counsel responded to the prosecution's argument by
asserting that "Ramdass will never be out of jail. Your sentence today
will insure that if he lives to be a hundred and twenty two, he will
spend the rest of his life in prison."

During sentencing deliberations, the jury asked:"if the Defendant
is given life, is there a possibility of parole at some time before his
natural death?" While recognizing that Virginia law did not permit a
sentencing jury to be informed of the defendant's parole eligibility,
Ramdass' counsel nevertheless maintained that "the [jurors'] question
itself implies that they have a perception that if they give a life 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]selves with what may happen afterwards." The jury returned a
verdict recommending death on the capital murder count, based upon
Ramdass' "future dangerousness," and recommending four years
imprisonment on the firearm count.

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

                     5
sel proffered to the court that three jurors had told him that they
would have imposed a life sentence rather than death if they had
known that Ramdass would not be eligible for parole. Rejecting
defense counsel's request, the court sentenced Ramdass to death.

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

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

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

                     6
360, 361 (Va. 1994) (internal quotation marks omitted). While recog-
nizing the Pizza Hut conviction and the Kayani murder conviction as
predicate offenses under the three-strikes statute, the court rejected
Ramdass' argument that the January 7, 1993 jury verdict of guilty in
the Domino's Pizza robbery was also a predicate conviction because
"[j]udgment had not been entered on that verdict." Id. Accordingly,
the court stated, "it cannot be considered as a conviction" under the
three-strikes provision. Id. (citing Smith v. Commonwealth, 113 S.E.
707, 709 (1922)).

Pursuing state post-conviction relief, Ramdass again asserted in his
state habeas petition that Simmons required that the jury be accurately
informed as to his parole eligibility status, although he did not specifi-
cally challenge the Virginia Supreme Court's determination in
Ramdass II that under Virginia law he was not ineligible for parole.
Ramdass also claimed that his trial counsel were constitutionally inef-
fective for, inter alia, failing to investigate and to object to the
appointment of Dr. Stanton Samenow as his mental health expert
because Dr. Samenow was "notoriously pro-prosecution" and refused
to work with the defense. In arguing the ineffective assistance of
counsel, Ramdass stated also that he was denied the reasonable assis-
tance of a mental health expert at trial, in violation of both Ake v.
Oklahoma, 470 U.S. 68 (1985) (holding that in limited circumstances,
a criminal defendant has a Fourteenth Amendment right to access to
a competent psychiatrist) and Virginia Code § 19.2-264.3:1 (entitling
indigent capital defendants to the assistance of a mental health
expert). The Virginia Supreme Court dismissed the petition. It ruled
that Ramdass' Simmons claim was barred from review under the rule
of Hawks v. Cox, 175 S.E.2d 271 (Va. 1970) (holding that an issue
previously decided against the petitioner on direct appeal may not
again be considered on post-conviction review), and it summarily
rejected Ramdass' ineffective assistance of counsel claim.

Seeking habeas relief in the federal courts, Ramdass filed this peti-
tion in February 1997, alleging, among other things, unconstitutional
error in the trial court's failure to allow the jury to consider his
alleged parole ineligibility. He also claimed that trial counsel were
constitutionally ineffective for failing to investigate the views and
reputation of Dr. Samenow, for failing to object to his appointment,
and for failing to seek alternative mental health testimony. Finally, he

                     7
alleged that his Fourteenth Amendment right to the assistance of a
mental health expert had been violated, either under Ake or by depri-
vation of a state-created right to such assistance provided in Va. Code
Ann. § 19.2-264.3:1. The district court granted Ramdass a writ of
habeas corpus based on the Simmons claim, dismissed the remaining
claims, and ordered the state trial court to resentence him. See
Ramdass v. Angelone, 28 F. Supp.2d 343, 356-74 (E.D. Va. 1998).
From the district court's order, the Commonwealth of Virginia
appealed to challenge the Simmons ruling, and Ramdass cross-
appealed to preserve his claim on various other grounds rejected by
the district court.

II

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

The Commonwealth's first point -- that Ramdass failed to pre-
serve his Simmons claim by raising it in state court as required by 28
U.S.C. § 2254(b) (barring federal courts from entertaining habeas
petitions from individuals who have not exhausted their state court
remedies) -- does not merit an extended discussion. Prior to filing his
federal habeas petition, Ramdass raised his core Simmons claim --
that due process entitled him to inform the jury that he was ineligible
for parole -- to the Virginia Supreme Court on at least three separate
occasions: in his first direct appeal, in his direct appeal on remand
from the United States Supreme Court, and in his state habeas peti-
tion. Indeed, the most compelling evidence that Ramdass did not
default his Simmons claim is the fact that the Virginia Supreme Court
disposed of that claim by declaring it barred from review on state
habeas by the rule of Hawks v. Cox, 175 S.E.2d 271 (Va. 1970),
which proscribes the relitigation of claims that have already been
adjudicated on the merits in state court on direct appeal.

While it is true, as the Commonwealth points out, that Ramdass did
not specifically contest the parole eligibility determination in his state
habeas petition, he did assert the broader, more basic claim, which he

                     8
had made all along, that the trial court's refusal to give the jury that
information on his request violated his constitutional right to due pro-
cess. We believe that the Commonwealth's characterization of Ram-
dass' Simmons claim for this purpose is unduly narrow. Accordingly,
we conclude that the district court did not err in finding that the
Simmons claim was not defaulted. We now turn to the merits.2

A

Understanding first the precise rule in Simmons will aid our analy-
sis of Ramdass' claims. In Simmons v. South Carolina, 512 U.S. 154
(1994), the prosecutor had argued to the jury during the penalty phase
of trial that the death sentence was appropriate because Simmons,
who had assaulted and killed several elderly women, was a future
danger to society. To rebut this argument, Simmons contended that
because he was only a threat to elderly women, none of whom he
would ever encounter in prison, he did not pose such a danger. He
proffered evidence that he was legally ineligible for parole and
requested an instruction to the jury that if sentenced to life imprison-
ment, he would remain imprisoned "for the balance of his natural
life." Id. at 160. The trial court denied Simmons' request to inform
the jury, either by argument or instruction, of his ineligibility for
_________________________________________________________________
2 The Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA"), establishing the applicable standard of review, provides in
relevant part:

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

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

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

28 U.S.C. § 2254(d).

                    9
parole under South Carolina law. The United States Supreme Court
ruled that this denied Simmons due process as guaranteed by the
Fourteenth Amendment. Id. at 156, 171 (Blackmun, J., plurality opin-
ion); id. at 178 (O'Connor, J., concurring). We recognize Justice
O'Connor's concurrence as the controlling opinion in Simmons
because it represents the narrowest grounds upon which a majority of
the Court agreed. See Keel v. French, 162 F.3d 263, 270 (4th Cir.
1998), cert. denied, No. 98-9324, 1999 WL 317623 (U.S. June 14,
1999); Townes v. Murray, 68 F.3d 840, 849 (4th Cir. 1995); see also
O'Dell v. Netherland, 521 U.S. 151, 158 (1997).

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

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

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

                     10
Id.

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

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

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

It is undisputed in this case that Ramdass meets the first require-
ment. The prosecutor at Ramdass' sentencing proceeding argued that
the death penalty was necessary solely because Ramdass was a future
danger to society. Whether Ramdass meets the second requirement is
the principal source of dispute in the appeal before us.3 Resolution of
_________________________________________________________________
3 It is undisputed that the Supreme Court decided Simmons before
Ramdass' direct appeal was final. See Ramdass v. Virginia, 512 U.S.
1217 (1994) (granting Ramdass' petition for certiorari on direct appeal
and remanding to the Virginia Supreme Court for reconsideration in light

                    11
this issue depends on how Simmons defines parole ineligibility and
whether, under the standards for making that determination, Ramdass
was ineligible for parole at the time of the penalty phase of trial.

B

In Ramdass II, the Virginia Supreme Court held that Simmons did
not apply to Ramdass' case because Simmons required legal ineligi-
bility for parole and Ramdass was not ineligible for parole under Vir-
ginia law. The Court concluded that if sentenced to life imprisonment
on the Kayani murder, Ramdass would not have been"convicted of
three separate felony offenses" of murder, rape, or armed robbery as
required for parole ineligibility under Virginia's three-strikes statute.
Va. Code Ann. § 53.1-151(B1). According to the court, Ramdass'
qualifying convictions at the time were (1) the Pizza Hut armed rob-
bery conviction, upon which judgment had been entered, and (2) the
Kayani murder conviction. The court acknowledged that a jury had
also returned a verdict finding Ramdass guilty of armed robbery in
the Domino's Pizza incident. But, relying on Smith v. Commonwealth,
113 S.E. 707 (Va. 1922), which held that conviction does not occur
until judgment is entered, the court concluded that the Domino's
Pizza robbery could not be counted as the third strike under the Vir-
ginia statute because the court had not entered judgment on that guilty
verdict at the time that the jury in this case was deliberating Ramdass'
sentence. See Ramdass II, 450 S.E.2d at 361.

Ramdass contends that the Virginia Supreme Court misconstrued
Simmons as requiring a state law determination of parole ineligibility
rather than "the functional and common-sense[im]possibility of
parole" as the trigger for the right to inform the jury of parole ineligi-
bility. Moreover, even if state law governs the parole ineligibility
determination for purposes of applying Simmons , Ramdass, in sub-
_________________________________________________________________
of Simmons); cf. O'Dell v. Netherland , 521 U.S. 151 (1997) (declaring
that Simmons announced a "new rule" under Teague for all already final
convictions). Accordingly, the anti-retroactivity component of § 2254(d)
would not bar application of Simmons to Ramdass' habeas petition on
retroactivity grounds if Simmons is otherwise applicable as a matter of
substantive law.

                    12
stance, accuses the Virginia Supreme Court of attempting to avoid the
application of Simmons by adopting a novel and highly technical defi-
nition of "convicted" in the three-strikes provision. Further, Ramdass
maintains that even if a conviction requires the entry of judgment, as
Ramdass II held, the Domino's Pizza guilty verdict should count as
a conviction because the entry of judgment was nondiscretionary,
purely ministerial, and legally insignificant. In short, Ramdass argues
for a pragmatic, functional, nonlegalistic concept of when a defendant
is ineligible for parole.

Because Ramdass advances an erroneous interpretation of
Simmons, we must begin by turning to Simmons itself. Simmons
grants capital defendants a due process right in state trials to advise
a jury of parole ineligibility only when the only alternative to a sen-
tence of death is a sentence of life imprisonment without the possibil-
ity of parole. That condition cannot be a general question of
practicality determined by a federal habeas court, as Ramdass argues.
Parole eligibility is a state law question. Under Simmons, only those
capital defendants who are parole ineligible under state law at sen-
tencing are constitutionally entitled to inform the jury that they will
be ineligible for parole if sentenced to life imprisonment. In other
words, a trial court must determine the question of whether Simmons
applies to a particular defendant based on whether state law renders
that defendant ineligible for parole. See Simmons, 512 U.S. at 156
(Blackmun, J., plurality opinion) (limiting the holding to situations
where "state law prohibits the defendant's release on parole"); id. at
176 (O'Connor, J., concurring) (citing South Carolina statutes to dem-
onstrate that for Simmons "the only available alternative sentence to
death . . . was life imprisonment without the possibility of parole").

When Ramdass argues that Simmons' applicability is not condi-
tioned on "a state's determination of `parole ineligibility' at the
moment of capital sentencing" but rather on a nonlegalistic "common-
sense [im]possibility of parole," he advances a new interpretation of
Simmons that is simply incompatible with the logic of Simmons itself.
In relying on Justice O'Connor's statement that Simmons applies in
"cases in which the only available alternative sentence to death . . . is
life imprisonment without possibility of parole," id. at 177, to argue
that a federal, functional standard applies to parole ineligibility deter-
minations, Ramdass ignores the Simmons plurality's repeated refer-

                     13
ence to state law as the determining factor for whether or not a
defendant is ineligible for parole. See, e.g., id. at 156 ("We hold that
where the defendant's future dangerousness is at issue, and state law
prohibits the defendant's release on parole, due process requires that
the sentencing jury be informed that the defendant is parole ineligi-
ble" (emphasis added)); id. at 165 (observing that the defendant's
ability to use parole ineligibility to rebut a future dangerousness argu-
ment depends "on the fact that he was legally ineligible for parole"
(emphasis added)); id. at 165 n.5 ("The Due Process Clause will not
tolerate placing a capital defendant in a straitjacket by barring him
from rebutting the prosecution's arguments of future dangerousness
with the fact that he is ineligible for parole under state law" (empha-
sis added)). Moreover, his reliance on Justice O'Connor's language
is also misplaced. Ramdass' interpretation not only reads too much
into Justice O'Connor's phraseology, but it also takes the phrase out
of context. Nothing in Justice O'Connor's concurrence indicates that
she disagreed with the plurality and believed that the parole eligibility
determination was governed by anything other than state law. On the
contrary, she cited state law to show that Simmons himself was ineli-
gible for parole, see id. at 176, and she concluded that Simmons was
entitled to communicate his parole ineligibility to the jury because
"the only alternative sentence to death under state law was life
imprisonment without possibility of parole," id. at 178 (emphasis
added). See also id. at 176 ("In a State in which parole is available,
the Constitution does not require (or preclude) jury consideration of
that fact").

In addition, Ramdass' argument for equating legal parole ineligibil-
ity with a common-sense impossibility of parole is at odds with case
law from this circuit. Under Ramdass' theory, defendants who are, as
a practical matter, unlikely to be paroled -- perhaps because a state
only rarely grants parole or because the defendant would be over a
hundred years old when finally legally eligible-- would be entitled
to a Simmons instruction. Yet, we have consistently refused to apply
Simmons to cases in which the defendants were not legally ineligible
for parole at the time of sentencing. See, e.g., Roach v. Angelone, 176
F.3d 210, 220 (4th Cir. 1999) (refusing to extend Simmons to apply
to a defendant who would not become eligible for parole for twenty-
five years, under state law); Keel v. French, 162 F.3d 263, 270 (4th
Cir. 1998) (holding that "[s]ince Keel would have been eligible for

                     14
parole had he not been sentenced to death, [citing state law], he is not
entitled to any relief under our current interpretation of Simmons"),
cert. denied, No. 98-9324, 1999 WL 317623 (U.S. June 14, 1999);
Fitzgerald v. Greene, 150 F.3d 357, 367 (4th Cir.) (declining to apply
Simmons after Virginia Supreme Court determined defendant was not
ineligible for parole under the three strikes statute because his convic-
tions arose out of the same transaction), cert . denied, 119 S. Ct. 389
(1998).

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

Even were we persuaded by Ramdass' theory that practical rather
than legal parole ineligibility suffices to trigger Simmons, we would
conclude that it was not "clearly established" as required by 28 U.S.C.
§ 2254(d)(1). Cf. Keel, 162 F.3d at 269. This statutory provision,
which requires that the state court decision at issue be inconsistent
with "clearly established Federal law, as determined by the Supreme
Court of the United States," 28 U.S.C. § 2254(d)(1), "imports an anti-
retroactivity principle into federal habeas law." Green v. French, 143
F.3d 865, 873 (4th Cir. 1998). It resembles, but does not simply cod-
ify, the anti-retroactivity doctrine of Teague v. Lane, 489 U.S. 288
(1989). In fact, we have observed that the standard of § 2254(d)(1) is
"even more stringent" than Teague. Weeks v. Angelone, 176 F.3d 249,
266 n.9 (4th Cir. 1999); see also Gosier v. Welborn, 175 F.3d 504,
510 (7th Cir. 1999) (noting that § 2254(d)(1)"closes the escape
hatches in Teague").4 Thus, either under Teague or under
§ 2254(d)(1), Ramdass' argument for an extension of Simmons would
fail.
_________________________________________________________________
4 In fact, § 2254(d)(1) can be seen as stricter in that it does not recog-
nize Teague's two traditional exceptions which permit retroactive appli-
cation of new rules which either "place[ ] certain kinds of primary,
private individual conduct beyond the power of the criminal law-making
authority to proscribe" or are "watershed rules of criminal procedure."
See Green, 143 F.3d at 873 (quoting Teague , 489 U.S. at 311-12).

                     15
C

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

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

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

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

                     16
eral other potentially qualifying offenses within several days of each
other, the random order in which he was tried for these various
offenses was entirely foreseeable, dictated only by the docket of the
relevant county court. In fact, it is equally possible that Ramdass
could have been tried on the most serious charge-- the Kayani mur-
der -- first, in which case he would have had only one qualifying con-
viction at the time of sentencing and, thus, would be an additional
conviction short of making a valid Simmons claim.

Second, Ramdass characterizes the Virginia Supreme Court's reli-
ance on Smith v. Commonwealth, 113 S.E. 707 (1922) (discussing the
meaning of the term "conviction" in the context of a statute removing
public officials from office upon conviction of crimes of moral turpi-
tude), as a judicial version of grasping at straws. Yet, sound reasoning
supports Smith's holding that conviction requires an entry of judg-
ment, rather than simply a jury verdict. Cf. Fed. R. Crim. P. 32(d)(1)
(requiring an entry of judgment signed by the judge). Even though
Smith's factual predicate is wholly unrelated to parole eligibility, the
age-old rationale underlying its definition of conviction is designed to
protect defendants. Requiring the entry of judgment-- even if it
appears to be only a formal step of the process-- in contexts in which
additional negative consequences are to be imposed based on the con-
viction, provides an additional layer of procedural protection against
unfairness or corruption.

Third, Ramdass attempts to portray the Smith decision as an irrele-
vant relic. While the Virginia Supreme Court had not cited this case
in a published opinion since the 1920s, the intermediate appellate
court has observed that "Virginia courts have defined the word `con-
victed' in accordance with Smith, but only in the context of a defen-
dant who has been confronted with some type of forfeiture." Fields
v. Commonwealth, 361 S.E.2d 359, 362 (Va. Ct. App. 1987) (purport-
ing to limit Smith to its facts). As a type of forfeiture, parole ineligi-
bility fits neatly within the narrow circumstances in which the Smith
definition of conviction is appropriate, or even necessary. Upon
amassing a given number of convictions for certain crimes, a defen-
dant forfeits his right to be considered for parole under the standard
operation of the parole system. This is precisely the kind of serious
deprivation that should not occur without the solemn imprimatur of
the court's entry of judgment on the decision of the jury. Finally, the

                     17
fact that the Virginia Supreme Court has remanded for re-sentencing
upon finding a Simmons violation in another case defeats the implica-
tion that the Virginia Supreme Court is somehow hostile to enforcing
the Simmons right. See Mickens v. Commonwealth, 457 S.E.2d 9 (Va.
1995).

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

III

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

A

First, Ramdass claims that the Virginia Supreme Court's interpreta-
tion of the three-strikes provision was so inconsistent with Virginia
precedent and so arbitrary that it violated due process. In response to
the Commonwealth's contention that this claim was defaulted by fail-
ure to raise it in state court, he argues that it could not have been
defaulted because the Virginia Supreme Court in fact addressed it
simply by concluding that he was parole eligible under Virginia law.
This argument, however, proves too much. Carried to its logical con-
clusion, Ramdass' argument would mean that every judicial ruling
carries with it an implicit, due process rubber-stamp. There is no evi-
dence that the Virginia Supreme Court's parole eligibility determina-
tion silently encompassed an additional conclusion that the parole

                    18
eligibility finding itself comported with due process. Because, as
Ramdass concedes, ineffective assistance of state habeas counsel will
not show cause for his default, see Mackall v. Angelone, 131 F.3d
442, 446-49 (4th Cir. 1997), we have no power to reach the merits of
this independent due process claim on federal habeas. See 28 U.S.C.
§ 2254(b)(1)(A). In any event, we would reject the claim on the mer-
its for the reasons given in our discussion in Part II(C), above.

B

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

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

Under this standard, Ramdass did include in his state habeas peti-
tion at least the "substance" of his federal claim that he was denied
a mental health expert in violation of due process under Ake. Even
though the claim appeared under the heading of ineffective assistance
of counsel and the sub-heading of failure to secure a mental health
expert, Ramdass nonetheless grounded his claim on the seminal
Supreme Court case, Ake. He summarized the holding of Ake and

                    19
alleged facts in support of his claim that Dr. Samenow was pro-
prosecution and refused to assist the defense by identifying any miti-
gating factors for the sentencing phase. Even so, the Virginia
Supreme Court dismissed this claim, finding that it had no merit. In
doing so, the Virginia Supreme Court did not unreasonably apply
clearly established federal law. See 28 U.S.C. § 2254(d).

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

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

C

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

To prevail on his ineffective assistance of counsel claim, Ramdass
must meet two well-established requirements. First, he "must show
that counsel's representation fell below an objective standard of rea-

                     20
sonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984).
This is a difficult showing to make because in assessing the reason-
ableness of counsel's course of action, "[o]ur review . . . is highly def-
erential" to counsel. Wilson v. Greene, 155 F.3d 396, 403 (4th Cir.
1998) (citing Strickland, 466 U.S. at 689). Second, he must demon-
strate "a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. The district court, assuming arguendo
that Ramdass could satisfy the deficiency prong of Strickland, ruled
that Ramdass's ineffective assistance claim failed because he could
show no prejudice. See Ramdass, 28 F. Supp.2d at 370. We agree.

Instead of presenting testimony from Dr. Samenow, who had failed
to identify any mitigating factors in his report on Ramdass, Ramdass'
trial counsel presented testimony from Ramdass, his brother, his
mother, and a probation officer during the penalty phase in an attempt
to establish mitigating factors. Because the jury was aware of the dys-
functional circumstances of Ramdass' childhood, Ramdass cannot
now show a reasonable probability that psychiatric testimony as to the
same circumstances would produce a different result. Moreover, nei-
ther Ake, 470 U.S. at 83, nor Virginia Code§ 19.2-264.3:1(A) creates
a right to a particular expert. Accordingly, Ramdass cannot show a
reasonable probability, as required by Strickland, that the Virginia
Supreme Court would have either removed Dr. Samenow upon objec-
tion or appointed an additional expert upon request.

D

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

IV

In sum, we reverse the district court's decision to grant Bobby Lee
Ramdass' petition for a writ of habeas corpus based upon a Simmons
violation. Because Simmons is limited to situations where state law
renders the defendant legally, not merely practically, ineligible for
parole, we conclude that the Virginia Supreme Court did not unrea-

                     21
sonably apply clearly established federal law when it ruled that
Simmons did not apply to Ramdass' case because Ramdass was not
ineligible for parole under Virginia law. In addition, we affirm the
district court's opinion as to the remaining issues raised by Ramdass
on cross-appeal. The judgment of the district court is

AFFIRMED IN PART AND REVERSED IN PART.

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

I concur in the majority's handling of most of the issues raised by
Ramdass.1 I respectfully dissent, however, from the majority's treat-
(Text continued on page 24)
_________________________________________________________________
1 I note that I concur only in the judgment on the Ake claim. Ake pro-
vides that under certain circumstances "the State must, at a minimum,
assure the defendant access to a competent psychiatrist who will conduct
an appropriate examination and assist in evaluation, preparation and pre-
sentation of the defense." Ake v. Oklahoma , 470 U.S. 68, 83 (1985).
Ramdass presented ample evidence to show that Dr. Stanton Samenow's
professed and public views make him incompetent to aid a defendant in
finding and presenting mitigating factors at a defendant's sentencing
phase, and that Dr. Samenow did not conduct an appropriate examina-
tion. Dr. Samenow has publicly stated that criminals are a "different
breed of person," (J.A. at 347), who seek to manipulate the system for
their own ends. He has abandoned sociologic, psychologic, and mental
illness explanations for criminal behavior and holds the view that "[m]ost
diagnoses of mental illness [in criminals] resulted from the criminal's
fabrications." (J.A. at 348.) Dr. Samenow's published works state that
circumstances have nothing to do with criminal violations and that "pro-
viding the criminal with an opportunity to present excuses deferred him
and us further and further from change." (J.A. at 348.) According to a
report submitted to the district court by Dr. Reuben Koller, Dr. Same-
now's views obviate his ability to evaluate mitigating factors relating to
the history or character of a criminal defendant"because he is of the
opinion that no mitigating factors can exist." (J.A. at 474.) Even if Dr.
Samenow were to abandon his public beliefs and identify mitigating fac-
tors, his testimony would be subject to damaging impeachment on cross-
examination from his own publicly expressed views. In fact, the record
shows that just that happened at another capital sentencing trial. Further,
Dr. Koller opined that Dr. Samenow's examination of Ramdass was "in-

                    22
complete, deficient and inadequate according to conventional psycholog-
ical standards." (Id.) Dr. Koller's preliminary evaluation of the records
available to Dr. Samenow indicated seven specific factors ignored by Dr.
Samenow which could be considered significant factors in mitigation. It
is also worth noting that Dr. Samenow has been at the center of at least
two other constitutional challenges. See Swann v. Taylor, 173 F.3d 425,
1999 WL 92435, at *6-*9 (4th Cir. Feb. 18, 1999) (unpublished table
disposition) (claiming Ake violation); Wright v. Angelone, 151 F.3d 151,
161 (4th Cir. 1998) (claiming ineffective assistance of counsel for using
Dr. Samenow).

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

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

                    23
ment of Ramdass' Simmons claim. Because it seems evident that
Ramdass should be able to inform the jury, by argument or court
instruction, of his non-eligibility for parole if sentenced for life
imprisonment, I would affirm the district court on the Simmons claim
so that the sentencing jury could be accurately informed that Ramdass
would be parole ineligible.

I.

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

The jury found Ramdass guilty of the Kayani murder on January
28, 1993. His sentencing hearing began the next day. At that hearing,
the prosecution presented as evidence of Ramdass' future dangerous-
ness the fact that he had been found guilty of the Pizza Hut robbery,
see infra, and the Domino's Pizza robbery, see infra. The Common-
wealth also emphasized that previously Ramdass had committed
crimes while released on "mandatory" parole. While deliberating
Ramdass' sentence, the jury asked the judge, "if the Defendant is
given life is there a possibility of parole at some point before his natu-
ral death?" (emphasis added). Rather than answering that question,
the judge told the jury that they were "not to concern [themselves]
with what may happen" after they impose his sentence. On January
30, 1993, the jury imposed a sentence of death.

On appeal, the Supreme Court ordered the Virginia Supreme Court
to reconsider Ramdass' case in light of Simmons v. South Carolina,
512 U.S. 154 (1994). Simmons involved facts almost identical to
those at bar. In Simmons, a defendant was made parole ineligible by
a conviction for capital murder. At the sentencing phase for that
crime, the defendant requested that the jury be instructed that a life
sentence would not carry with it the possibility of parole. To bolster
his position, the defendant cited, inter alia , a study indicating that
more than 75 percent of those surveyed in South Carolina considered
_________________________________________________________________
presented psychiatric evidence of future dangerousness is clearly estab-
lished by the Supreme Court).

                     24
the amount of time a defendant would actually have to spend in prison
to be an "extremely important" or "very important" factor in choosing
between life and death. Simmons, 512 U.S. at 159. As in the case at
bar, during deliberations, the jury asked the judge a single question:
"Does the imposition of a life sentence carry with it the possibility of
parole?" Id. at 160. The trial judge gave a vague answer and
instructed the jury not to consider parole in reaching its verdict. Id.
Within minutes, the jury returned a sentence of death.

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

At the time the capital jury was considering his sentence, Ramdass
had been found guilty of five robberies and one murder.2 One of the
robberies involved no deadly weapon and therefore was not a predi-
cate conviction. Two of the other robberies were part of the same
transaction. On December 15, 1992, a jury had found Ramdass guilty
of two counts of robbery and one count of using a firearm in the com-
mission of a robbery (the "Pizza Hut robbery"). Judgment and sen-
tence for this crime was officially imposed on January 22, 1993. At
the time that Ramdass was sentenced on the Kayani murder, this con-
viction was still subject to a motion to set aside the verdict for trial
error or insufficiency of the evidence. See Va. Sup. Ct. R. 3A:15(b)
(Michie 1998). It was also subject to an appeal. See Va. Code Ann.
§ 17-116.05:3 (Michie 1996). The Virginia Supreme Court counted
the Pizza Hut robbery as only one predicate conviction.

The final two armed robberies were also part of one transaction. On
January 7, 1993, in a separate proceeding, a jury found Ramdass
guilty of two counts of robbery and one count of using a firearm in
_________________________________________________________________
2 He was also awaiting trial on two other armed robberies, both involv-
ing assault with a deadly weapon.

                    25
the commission of a robbery (the "Domino's Pizza robbery"). Judg-
ment and sentence on this crime was not officially imposed until Feb-
ruary 18, 1993. The Virginia Supreme Court reasoned that the
Domino's Pizza robbery did not count as a predicate conviction
because at the time of the Kayani sentencing, Ramdass had not yet
been "convicted" of that offense under the meaning of that term in the
three strikes law -- although he had been found guilty, judgment had
not yet been officially entered. With only one predicate conviction
besides the Kayani murder, the Virginia Supreme Court held that
Simmons was inapplicable because on January 30, 1993 Ramdass was
technically eligible for parole.

While this result is sound under the legal technicalities of Virginia
law, in practical reality it was a certainty that Ramdass would be
parole ineligible upon entry of the Kayani conviction. Indeed, at the
Kayani sentencing, there was no practical difference between the
Domino's Pizza robbery guilty verdict and the Pizza Hut robbery
guilty verdict. From January 30, 1993 until February 18, 1993, no
motions were outstanding which could have affected the Domino's
Pizza conviction. Ramdass claims that as of January 30, 1993, his
motion to strike the evidence as insufficient as a matter of law in the
Domino's Pizza robbery case, see Va. Sup. Ct. R. 3A:15(a), had
already been denied. So, except for the ministerial act of formally
entering judgment, on January 30, 1993, Ramdass was in exactly the
same position vis-a-vis the Domino's Pizza robbery as he was vis-a-
vis the Pizza Hut robbery: the finding of guilt was subject only to a
Rule 3A:15(b) motion to set aside the verdict and an appeal under
Virginia Code § 17-116.05:3.3 Thus, although it was a virtual cer-
tainty at his capital sentencing that Ramdass would be ineligible for
parole, the Virginia Supreme Court found that Simmons was not
applicable because Ramdass was still in some technical legal sense
eligible for parole.
_________________________________________________________________
3 The Commonwealth also points out that under Va. Code Ann.
§§ 19.2-298 and -303 (Michie 1995), the court could suspend the imposi-
tion of the sentence or suspend the sentence in whole or in part. This is
irrelevant, however, for two reasons. First, the Pizza Hut robbery was
also subject to a § 19.2-303 suspension of the sentence. Second, regard-
less of whether a sentence has been suspended, nothing in §§ 19.2-298
or 19.2-303 erases the conviction for purposes of parole ineligibility
under Virginia's three strikes statute.

                    26
Nineteen days after the jury delivered Ramdass' sentence for the
Kayani murder, the ministerial act of entering judgment on the Domi-
no's Pizza robbery was completed, giving Ramdass his second predi-
cate conviction. The Kayani sentence and judgment was officially
imposed on April 6, 1993 -- more than one month after formal entry
of judgments on the Pizza Hut robbery and the Domino's Pizza rob-
bery. When judgment for the Kayani murder was entered, that judg-
ment, combined with the Pizza Hut conviction and the Domino's
Pizza conviction gave Ramdass his third strike, making him ineligible
for parole. This was exactly the occurrence of which Ramdass had
requested the jury be informed.

II.

The majority takes the view that the Virginia Supreme Court's
interpretation of Virginia law settles the case. I disagree. There is no
doubt that the Virginia Supreme Court was entitled to interpret the
word "convicted" in Virginia Code § 53.1-151(A) in the way it did.
Further, we are bound by this interpretation of state law by the highest
state court. This case does not hinge on the word"convicted" in Vir-
ginia law, however. The case hinges upon the requirements of the
Due Process clause of the Fourteenth Amendment. In Simmons, the
Supreme Court defined one aspect of this Due Process clause. Admit-
tedly, the right recognized in Simmons is dependent to some extent
upon state law: The right depends upon state parole law; the right
only applies to those for whom state law has eliminated the possibility
of parole. But, the right is a federal right, nonetheless, and the scope
and parameter of the Simmons right is a matter of federal constitu-
tional law.

The majority rejects a "pragmatic, functional, nonlegalistic con-
cept" of the Simmons right. I think the majority has overlooked the
genesis of Simmons. Simmons was merely an extension of the rule in
Gardner v. Florida, 430 U.S. 349 (1977), and Skipper v. South
Carolina, 476 U.S. 1 (1986), that "elemental due process require[s]
that a defendant not be sentenced to death `on the basis of information
which he had no opportunity to deny or explain.'" Skipper, 476 U.S.
at 5 n.1 (plurality opinion) (quoting Gardner , 430 U.S. at 362),
quoted in part in Simmons, 512 U.S. at 164 (plurality opinion), and
quoted in id. at 175 (O'Connor, J., concurring in the judgment). As

                    27
both the plurality opinion and the O'Connor concurrence4 recognized,
the fact that the defendant will never be released from prison "will
often be the only way that a violent criminal can successfully rebut
the State's case [of future dangerousness]." Simmons, 512 U.S. at 177
(O'Connor, J., concurring in the judgment); id . at 163-64 (plurality
opinion) ("In assessing future dangerousness, the actual duration of
the defendant's prison sentence is indisputably relevant. . . . Indeed,
there may be no greater assurance of a defendant's future nondanger-
ousness to the public than the fact that he never will be released on
parole.").

This principle has full force in the case at bar. At capital sentenc-
ing, the prosecution presented evidence of Ramdass' future danger-
ousness. Some of this evidence included the fact that Ramdass had
committed the Pizza Hut robbery and the Domino's Pizza robbery.
More importantly, the Commonwealth repeatedly referred to the fact
that Ramdass had committed many of his crimes while on parole. The
Commonwealth mentioned the phrase "mandatory parole" several
times, suggesting to the jury that the Commonwealth would have no
choice but to parole Ramdass at some future date. In the face of this
evidence of future dangerousness, Ramdass was rendered powerless
to explain to the jury that, but for what was at that point a meaning-
less ministerial act, he was ineligible for parole under state law.5
Thus, under Gardner, Skipper, and Simmons, Ramdass was denied his
"elemental due process" right to deny or explain the Commonwealth's
_________________________________________________________________
4 We have recognized Justice O'Connor's concurrence as the control-
ling opinion in Simmons. See Keel v. French, 162 F.3d 263, 270 (4th Cir.
1998), cert. denied, No. 98-9324, 1999 WL 317623 (U.S. June 14,
1999); Townes v. Murray, 68 F.3d 840, 849 (4th Cir. 1995).
5 The majority sets up a straw man by asserting that Ramdass has asked
us to extend Simmons to situations in which a defendant is not ineligible
for parole under state law. The majority relies in part on Roach v.
Angelone, 176 F.3d 210, 220 (4th Cir. 1999), Keel v. French, 162 F.3d
263, 270 (4th Cir. 1998), and Fitzgerald v. Greene, 150 F.3d 357, 367
(4th Cir. 1998), to defeat this straw man. In each of those cases, however,
the defendant remained eligible for parole under state law even when all
ministerial acts were completed. Of course Simmons did not apply to
each of those defendants. Those cases are wholly inapposite here, where
Ramdass' whole argument is based on his parole ineligibility under state
law.

                    28
evidence of future dangerousness. See Simmons , 514 U.S. at 175
(O'Connor, J., concurring).

It is also important to remember the audience of the Simmons right.
Simmons is concerned about the defendant's ability to present rebuttal
evidence to a jury. Thus, Simmons is grounded in the right to present
information which might affect a jury's decision making. Juries are
not concerned about legal technicalities or remote and theoretical pos-
sibilities. They are concerned about practical realities. The Supreme
Court recognized this point in Simmons. In Simmons, South Carolina
argued that informing the jury that the defendant would be parole
ineligible was inherently misleading because future contingencies
such as legislative reform, commutation, and clemency might allow
the release of the prisoner. The plurality rejected this argument, hold-
ing that the defendant could not be denied the right to rebut prosecu-
tion evidence of future dangerousness merely because of
"hypothetical future developments." Simmons, 512 U.S. at 166. The
court reasoned that a parole ineligibility instruction was more accu-
rate than no instruction at all, which would inevitably leave the jury
to assume that the defendant would eventually be released. Id. Noth-
ing in Justice O'Connor's concurrence indicates that she disagreed
with the plurality that remote contingencies were irrelevant to the due
process analysis.

In the case at bar, the majority hides its reliance on hypothetical
future developments behind a state law shield. Because Ramdass did
not become technically "parole ineligible" under Virginia law until
judgment was formally entered on the Domino's Pizza robbery, the
majority holds that Simmons is inapplicable. But at the time of the
Kayani sentencing, only some hypothetical future development as
remote as legislative reform, commutation, or clemency, could have
affected entry of the Domino's Pizza robbery conviction and therefore
prevented Ramdass from being parole ineligible. The reason the
Supreme Court rejected reliance on such future hypothetical develop-
ments is evident in the arbitrary result of the case at bar. At the time
of the Kayani sentencing, the court had already rejected Ramdass'
motions in the Domino's Pizza robbery case to set aside the jury's
verdict before entry of judgment. See Virginia Sup. Ct. R. 3A:15(a).
Formal entry of the conviction at that point was merely a ministerial
act. Thus, for all realistic intents and purposes, it was a guarantee that

                     29
Ramdass would be parole ineligible when the Kayani conviction was
formally entered.

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

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

                    30
