Affirmed by Supreme Court on Jun 19, 1997.
                                              Filed:   December 9, 1996


                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT



                            Nos. 94-4013(L)
                             (CA-92-480-R)



Joseph Roger O'Dell, III,

                                                 Petitioner - Appellee,

            versus


J. D. Netherland, etc., et al,

                                              Respondents - Appellants.




                               O R D E R



     The Court amends its opinion filed September 10, 1996, and

reported at 95 F.3d 1214, as follows:

     On page 12, first paragraph, line 11 after indented quote (95

F.3d at 1223) -- the line is corrected to read "rights"); Gilmore

v. Taylor, 508 U.S. 333, 344".

     In 95 F.3d at 1223, right column, line 9 after indented quota-

tion -- a second closing parenthesis is inserted after "(emphasis

added))".

     On page 39, first paragraph, line 1 (95 F.3d at 1238) -- the

phrase "their role is" is corrected to read "their role in."
                               - 2 -




     In 95 F.3d at 1245, the text -- beginning with "we [have re-

peatedly]" in the left column through "fairly and efficiently" in

the right column -- is indented to show it is quoted material.

     In 95 F.3d at 1245, the text -- beginning with "By filing" in

the right column through "cause and prejudice" in the left column

of 1246 -- is indented to show it is quoted material.

     On page 61, first paragraph, line 10 (95 F.3d at 1247) -- the

word "the" is deleted:   "most of Helen Schartner's . . . ."

     On page 71, second full paragraph, line 2 (95 F.3d at 1253) --

a comma is added after the name "Emrich."

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor

                                                   Clerk
Volume 1 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH ROGER O'DELL, III,
Petitioner-Appellee,

v.

J. D. NETHERLAND, Warden,
Mecklenburg Correctional Center;
RONALD J. ANGELONE, Director,
                                                     No. 94-4013
Virginia Department of Corrections;
JAMES S. GILMORE, III, Attorney
General of the Commonwealth of
Virginia; COMMONWEALTH OF
VIRGINIA,
Respondents-Appellants.

JOSEPH ROGER O'DELL, III,
Petitioner-Appellant,

v.

J. D. NETHERLAND, Warden,
Mecklenburg Correctional Center;
RONALD J. ANGELONE, Director,
                                                     No. 94-4014
Virginia Department of Corrections;
JAMES S. GILMORE, III, Attorney
General of the Commonwealth of
Virginia; COMMONWEALTH OF
VIRGINIA,
Respondents-Appellees.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-92-480-R)
Argued: December 5, 1995

Decided: September 10, 1996

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,
HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges.

_________________________________________________________________

Reversed in part and affirmed in part by published opinion. Judge
Luttig wrote the opinion, in which Chief Judge Wilkinson and Judges
Russell, Widener, Wilkins, Niemeyer, and Williams joined. Judge
Ervin wrote an opinion concurring in part and dissenting in part, in
which Judges Hall, Murnaghan, Hamilton, Michael, and Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Eugene Paul Murphy, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellants. Robert S. Smith, PAUL, WEISS, RIFKIND, WHARTON
& GARRISON, New York, New York, for Appellee. ON BRIEF:
James S. Gilmore, III, Attorney General of Virginia, Linwood T.
Wells, Jr., Assistant Attorney General, OFFICE OF THE ATTOR-
NEY GENERAL, Richmond, Virginia, for Appellants. Jeffrey M.
Eilender, PAUL, WEISS, RIFKIND, WHARTON & GARRISON,
New York, New York; Patricia M. Schwarzschild, HUNTON & WIL-
LIAMS, Richmond, Virginia; Michele J. Brace, Donald Lee, VIR-
GINIA CAPITAL REPRESENTATION RESOURCE CENTER,
Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

The United States District Court for the Eastern District of Virginia
vacated the death sentence of Joseph Roger O'Dell III on federal

                    2
habeas, holding that Simmons v. South Carolina, 114 S. Ct. 2187
(1994), was not a "new rule" under Teague v. Lane, 489 U.S. 288
(1989), and that O'Dell "was deprived of due process and subjected
to cruel and unusual punishment under the Fifth, Eighth and Four-
teenth Amendments to the United States Constitution, because the
trial court failed to allow petitioner to rebut the prosecutor's argument
as to petitioner's future dangerousness with evidence that he would
be ineligible for parole under state law," J.A. at 355. The district court
also denied numerous other claims of O'Dell's, including his claim
that new evidence demonstrates that he is actually innocent.

Heeding the instruction of three Members of the Supreme Court
that this case "should . . . receive careful consideration," O'Dell v.
Thompson, 502 U.S. 995, 999 (1991) (Blackmun, J., joined by Ste-
vens and O'Connor, JJ.), both the federal district court and now the
full en banc court have painstakingly canvassed the record, carefully
considering every claim that has been advanced by petitioner. Having
done so, we are convinced that O'Dell's claims are without merit and
his claim of actual innocence not even colorable. We are likewise
convinced that the federal district court erred in concluding that
Simmons did not announce a new rule. In California v. Ramos, 463
U.S. 992 (1983), every Member of the Supreme Court apparently
approved, as constitutionally permissible, the very practice later held
unconstitutional in Simmons. The only even arguably contrary author-
ity was a plurality opinion and a single footnote which three Members
of the Court believed represented an "abandonment" of the due pro-
cess holding that O'Dell now contends compelled the result in
Simmons. In our judgment, Simmons was the paradigmatic "new
rule." Accordingly, we affirm the district court's denial of O'Dell's
secondary claims and reverse the district court's judgment granting
the writ of habeas corpus.

I.

Over ten years ago, on Tuesday, February 5, 1985, 44-year-old
Helen Schartner left the County Line Lounge in Virginia Beach
around 11:30 p.m. O'Dell left the same nightclub sometime between
11:30 p.m. and 11:45 p.m. The next day, Schartner's car was found
in the parking lot of the County Line Lounge, and, around 3:00 p.m.,
her body was found in a muddy field across the highway from the

                     3
club. Tire tracks consistent with the tires on O'Dell's car were found
near the body. Schartner had been killed by manual strangulation,
with a force sufficient to break bones in her neck and leave finger
imprints. She also had eight separate wounds on her head consistent
with blows from the barrel of a handgun. About 10 days earlier, a
handgun with a barrel that could cause wounds like those found on
Schartner's head had been seen in O'Dell's car. Seminal fluid was
found in Schartner's vagina and anus. Enzyme tests on that fluid
revealed that it was consistent with a mixture of O'Dell's and Schart-
ner's bodily fluids. Spermatozoa also found in Schartner's genital
swabs and genital scrapings were consistent with O'Dell's.

Schartner's head wounds had bled extensively. Not more than two
and a half hours after Schartner left the County Line Lounge, O'Dell
entered a convenience store with blood on his face, hands, hair, and
clothes. Around 7:00 a.m., O'Dell called his former girlfriend, Connie
Craig, and told her he had vomited blood all over his clothes and that
he wanted to talk to her before he left for Florida. He then slept all
day at Craig's house.

The next day, Thursday, Craig read the local newspaper account of
Schartner's murder, describing how she had last been seen at the
County Line Lounge. Remembering that O'Dell customarily visited
the County Line Lounge on Tuesday nights, Craig went to her garage
and found the paper bag that O'Dell had told her he had left, contain-
ing several articles of bloody and muddy clothing. She brought the
bloody clothes into the house and called the police.

O'Dell was arrested, and, despite the contrary story he had just told
Craig, told the police that the blood on his clothes came from a nose
bleed caused by being struck while attempting to stop a fight at
another club on the night of February 5. Electrophoretic tests on the
dried blood established that the blood on O'Dell's jacket and shirt had
the same enzyme markers as Schartner's, a characteristic shared by
only three out of a thousand people. O'Dell's blood did not have the
same markers. Likewise, dried blood found in O'Dell's car proved
consistent with Schartner's but not with O'Dell's. And, hairs found
in O'Dell's car were also consistent with Schartner's, but not
O'Dell's.

                    4
During his incarceration, O'Dell confessed to Steven Watson, a fel-
low inmate, that he had strangled Schartner after she refused to have
sexual intercourse with him.

O'Dell was indicted for capital murder, abduction, rape, and sod-
omy. On his own motion, and after a court-appointed psychiatrist
determined him competent, O'Dell quite ably defended himself pro
se, with court-appointed attorney Paul Ray serving as standby coun-
sel. O'Dell was tried, and, on September 10, 1986, the jury convicted
him on all counts. The next day, the jury fixed his sentence for mur-
der at death. The jury's recommendation of death was based on its
finding that both of Virginia's statutory aggravating factors -- future
dangerousness and vileness -- had been proven. J.A. at 2506. The
trial judge adopted the jury's recommendation and sentenced O'Dell
to death by electrocution for murder and to 40 years for rape and 40
years for sodomy. O'Dell appealed his sentence to the Supreme Court
of Virginia, which affirmed the judgment of the Circuit Court. O'Dell
v. Commonwealth, 364 S.E.2d 491 (Va. 1988). The Virginia Supreme
Court subsequently granted O'Dell's petition for rehearing in order to
consider and reject a claim it had previously held to be procedurally
barred, after which it again affirmed the conviction. O'Dell v.
Commonwealth, Record No. 861219, slip op. (Va. April 1, 1988). The
United States Supreme Court denied certiorari on October 3, 1988.
O'Dell v. Virginia, 488 U.S. 871 (1988).

O'Dell filed a petition for a writ of habeas corpus in the Circuit
Court of Virginia Beach on June 1, 1989, and an amended petition on
July 3, 1990, both of which were denied. J.A. at 278-79. O'Dell
attempted to appeal the denial to the Virginia Supreme Court, but he
erroneously filed an "Assignments of Error" with the Supreme Court
instead of a "Petition for Appeal," as required by Virginia law. O'Dell
attempted to correct the error, but by then the time to file had expired
and so the Virginia Supreme Court dismissed his perfected Petition
for Appeal as untimely. The United States Supreme Court again
denied certiorari on December 2, 1991, with three Justices issuing a
statement respecting the denial of certiorari. See O'Dell, 502 U.S. at
995 (Blackmun, J., joined by Stevens and O'Connor, JJ.).

O'Dell then filed this federal habeas petition on July 23, 1992. The
district court, Judge James R. Spencer, held a full evidentiary hearing

                    5
on O'Dell's claim that new DNA evidence established that he was
actually innocent. The court rejected that claim, along with numerous
others, but vacated O'Dell's death sentence because he had not been
allowed to rebut the prosecution's future dangerousness arguments
with a showing that he would be ineligible for parole. In so doing, the
court held that this rule, announced in Simmons, was not a new rule
under Teague. The Commonwealth of Virginia appeals this latter
holding, and O'Dell cross-appeals the denial of his numerous other
claims.

II.

O'Dell, born in 1941, began his criminal career at age 13 with a
juvenile conviction for breaking and entering, followed by five con-
victions over the next three years for auto theft. By 1958, O'Dell had
turned violent. In that year, he was convicted of assault three times
and of threatening bodily harm once. The following year, he was con-
victed of attempted escape from prison. After being released from the
penitentiary, he returned five months later when his probation was
revoked. He was then convicted of five armed robberies and five
unauthorized uses of motor vehicles and sentenced to 24 years in
prison. While imprisoned, O'Dell was convicted of second degree
murder. In July of 1974, O'Dell was again paroled, whereupon he
went to Florida and was promptly convicted of kidnapping and rob-
bery, committed just seven months after his release from prison. The
victim in that case testified that O'Dell had struck her several times
on the head with his gun, choked her, and held a cocked gun to her
head in an attempt to force her to submit to sexual advances. The
Florida court sentenced him to 99 years in prison, but, inexplicably,
O'Dell was paroled yet again in December of 1983. Fourteen months
later, Helen Schartner was murdered.

Under Virginia law, "[a]ny 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 . . . shall not be eligible for
parole." Va. Code § 53.1-151(B1). O'Dell certainly appears to have
had the requisite number of violent felony convictions to be ineligible
for parole under Virginia law. Therefore, he requested that he be
allowed to respond to the prosecution's arguments of future danger-
ousness by arguing that he was parole ineligible. J.A. at 2308, 2378-

                    6
79, 2385-86. As required by Virginia law, however, the trial judge
neither allowed O'Dell to argue his parole ineligibility nor provided
the jury with any information regarding O'Dell's ineligibility. J.A. at
2386. See Poyner v. Commonwealth, 329 S.E.2d 815, 828 (Va. 1985)
("The jury had no right to know what might happen to defendant, in
terms of parole eligibility, after sentencing. During the penalty phase
it was the jury's duty to assess the penalty, irrespective of consider-
ations of parole."), cert. denied, 474 U.S. 865 (1985). Eight years
later, the Supreme Court, in Simmons, held that due process requires
that a criminal defendant be allowed to argue his parole ineligibility
to rebut prosecution arguments of future dangerousness. O'Dell seeks
the benefit of the rule of Simmons, and the Commonwealth argues
that Simmons announced a new rule under Teague.

A.

The question of whether a rule is "new" for purposes of Teague
arises in two different circumstances: first, where, like here, a particu-
lar case is decided after petitioner's conviction becomes final, and
petitioner seeks the benefit of the rule of that case; and second, where
petitioner seeks the extension of longstanding precedent. Cf. Stringer
v. Black, 503 U.S. 222, 227-28 (1992). In both instances, the Teague
inquiry is a threshold matter. Graham v. Collins, 506 U.S. 461, 466
(1993); Saffle v. Parks, 494 U.S. 484, 487 (1990). As the Court held
in Caspari v. Bohlen, 114 S. Ct. 948, 953 (1994), "if the State . . .
argue[s] that the defendant seeks the benefit of a new rule of constitu-
tional law, the court must apply Teague before considering the merits
of the claim." Therefore, before turning to the merits of O'Dell's
claim or attempting to define the precise contours of Simmons, our
first inquiry must be whether Simmons announced a new rule under
Teague. See also Sawyer v. Smith, 497 U.S. 227, 233-34 (1990);
Wright v. West, 505 U.S. 227, 310 (Souter, J., concurring in the judg-
ment). But see Wright, 505 U.S. at 309 (Kennedy, J., concurring in
the judgment). As explained in Caspari,

          a federal court should apply Teague by proceeding in three
          steps. First, the court must ascertain the date on which the
          defendant's conviction and sentence became final for
          Teague purposes. Second, the court must survey the legal
          landscape as it then existed, and determine whether a state

                     7
          court considering the defendant's claim at the time his con-
          viction became final would have felt compelled by existing
          precedent to conclude that the rule he seeks was required by
          the Constitution. Finally, even if the court determines that
          the defendant seeks the benefit of a new rule, the court must
          decide whether that rule falls within one of the two narrow
          exceptions to the nonretroactivity principle.

114 S. Ct. at 953 (internal quotation marks and citations omitted).

O'Dell's conviction became final on October 3, 1988, when the
United States Supreme Court denied his petition for certiorari on
direct appeal. See O'Dell v. Virginia, 488 U.S. 871 (1988). Therefore,
we must "survey the legal landscape" in October of 1988 to determine
whether the result of Simmons (and the accompanying rule necessary
to produce that result) was dictated by precedent existing at the time
O'Dell's conviction became final. Teague, 489 U.S. at 301 ("[A] case
announces a new rule if the result was not dictated by precedent exist-
ing at the time the defendant's conviction became final." (first empha-
sis added)). As the Supreme Court has stated repeatedly, a rule sought
by a habeas petitioner is "new," and thus consideration of the under-
lying claim barred, unless reasonable jurists considering the petition-
er's claim at the time his conviction became final"`would have felt
compelled by existing precedent' to rule in his favor." Graham, 506
U.S. at 467 (emphasis added) (quoting Saffle, 494 U.S. at 488).1 The
_________________________________________________________________

1 See also Penry v. Lynaugh, 492 U.S. 302, 313 (1989) ("[W]e must
determine, as a threshold matter, whether granting [Penry] the relief he
seeks would create a `new rule.'" (emphasis added) (quoting Teague, 489
U.S. at 301)); Graham, 506 U.S. at 472 ("We cannot say that reasonable
jurists considering petitioner's claim in 1984 would have felt that these
cases `dictated' vacatur of petitioner's death sentence." (emphasis
added) (quoting Teague, 489 U.S. at 301)); id. at 476 ("This distinction
leads us to conclude that neither Penry nor any of its predecessors
`dictates' the relief Graham seeks within the meaning required by
Teague." (emphasis added)); id. at 477 ("We cannot say that all reason-
able jurists would have deemed themselves compelled to accept Gra-
ham's claim in 1984." (emphasis added)); Stringer, 503 U.S. at 228
(Teague inquiry asks "whether granting the relief sought [by the
petitioner] would create a new rule because the prior decision is applied

                    8
inquiry is not merely whether the "claim" was"predicated" on pre-
existing precedent or whether the "challenge" was "dictated" by such
precedent; it is insufficient that prior decisions "inform, or even con-
trol or govern, the analysis of" a petitioner's claim. Saffle, 494 U.S.
at 491. See also Sawyer, 497 U.S. at 236 (quoting Saffle); Butler v.
McKellar, 494 U.S. 407, 415 (1990) (noting that a decision within the
"logical compass" of an earlier decision may nonetheless announce
new rule). Rather, the result of the case must have been compelled by
then-existing precedent, as even the dissenting Justices in the continu-
ing debate over the contours of the "new rule" doctrine agree.2
_________________________________________________________________

in a novel setting, thereby extending the precedent." (emphasis added));
id. at 227 ("[A] case decided after a petitioner's conviction and sentence
became final may not be the predicate for federal habeas corpus relief
unless the decision was dictated by precedent . . . ." (emphasis added));
Johnson v. Texas, 509 U.S. 350, 365 (1993) ("In rejecting the contention
that Penry dictated a ruling in the defendant's favor [in Graham], we
stated that . . . ." (emphasis added)); id. ("We also did not accept the view
that the Lockett and Eddings line of cases, upon which Penry rested,
compelled a holding for the defendant in Graham . . . ." (emphasis
added)); id. at 366 ("We concluded that, even with the benefit of the sub-
sequent Penry decision, reasonable jurists at the time of Graham's sen-
tencing `would [not] have deemed themselves compelled to accept
Graham's claim.'" (emphasis added) (quoting Graham, 506 U.S. at
477)); id. ("Thus, we held that a ruling in favor of Graham would have
required the impermissible application of a new rule under Teague."
(emphasis added)); Caspari, 114 S. Ct. at 953 ("The nonretroactivity
principle prevents a federal court from granting habeas corpus relief to
a state prisoner based on a rule announced after his conviction and sen-
tence became final." (emphasis added)).

2 Justice Souter, for example, who authored the dissent in Graham,
could not have been clearer as to this requirement of the "new rule" doc-
trine when he wrote in Wright that, "[t]o survive Teague, [a rule] must
be `old' enough to have predated the finality of the prisoner's conviction,
and specific enough to dictate the rule on which the conviction may be
held to be unlawful." 505 U.S. at 311 (Souter, J., concurring in the judg-
ment) (emphasis added); see also id. at 313 ("[I]n light of authority
extant when [petitioner's] conviction became final, its unlawfulness must
be apparent." (emphasis added)). Justice Brennan has also acknowledged
that this is the standard governing federal habeas review. As he stated in

                     9
We have suggested otherwise in several recent cases, see, e.g.,
Turner v. Williams, 35 F.3d 872 (4th Cir. 1994), cert. denied, 115 S.
Ct. 1359 (1985), and Ostrander v. Green, 46 F.3d 347 (4th Cir.
1995). Both Turner and Ostrander applied broad formulations, asking
whether prior caselaw "dictated petitioner's challenge" or whether
petitioner's challenge was "predicated on" prior caselaw. Applying
the first locution of whether prior precedent "dictates the challenge,"
alone would result in an inestimable number of cases in which federal
courts would be obliged to undertake full merits review of reasonable,
and in many instances unassailable, state court judgments. For in
many cases that are not currently reviewable on federal habeas, the
state court's judgment (against the petitioner) will have been dictated
by existing precedent. Any cases not subject to review under the "dic-
tates the challenge" locution would undoubtedly be subject to review
under the alternative formulation that the "new rule" doctrine does not
bar consideration of any claim "predicated on" prior caselaw. This
formulation renders reviewable on habeas essentially every claim, for
virtually every habeas petitioner necessarily "predicates" his claims
on prior caselaw.

These consequences of the formulations of the "new rule" inquiry
embraced in Turner and Ostrander underscore the error of those two
decisions. The very purpose of Teague was to halt federal habeas
review even of state court interpretations of federal law that ulti-
mately prove incorrect, provided they are reasonable. Yet under the
reasoning of those two cases, federal courts would be reviewing and
_________________________________________________________________

Butler, the Court in Teague "declared that a federal court entertaining a
state prisoner's habeas petition generally may not reach the merits of the
legal claim unless the court determines, as a threshold matter, that a
favorable ruling on the claim would flow from the application of [pre-
existing] legal standards." 494 U.S. at 417 (Brennan, J., dissenting)
(emphasis added); see also id. at 417-18 ("Put another way, a state pris-
oner can secure habeas relief only by showing that the state court's rejec-
tion of the constitutional challenge was so clearly invalid under then-
prevailing legal standards that the decision could not be defended by any
reasonable jurist." (emphasis added)); West, 505 U.S. at 291 ("[A] fed-
eral habeas court `must defer to the state court's decision rejecting the
claim unless that decision is patently unreasonable.'" (emphasis added)
(quoting Butler, 494 U.S. at 422 (Brennan, J., dissenting))).

                    10
deciding on the merits countless state court judgments that are not
only reasonable but, indisputably correct.

Thus, both locutions discussed in Turner and Ostrander would
frustrate the principles of finality, comity toward state judicial tribu-
nals, see Teague, 489 U.S. at 310 (explaining that "`[s]tate courts are
understandably frustrated'" when federal habeas courts reverse their
reasonable rulings on federal law) (quoting Engle v. Isaac, 456 U.S.
107, 128 n.33 (1982)), and respect for state prosecutorial authorities,
see Teague, 489 U.S. at 310 (stating that federal review should not
require states "to marshal resources in order to keep in prison defen-
dants whose trials and appeals conformed to then-existing constitu-
tional standards"), that prompted adoption of Teague's "new rule"
doctrine in the first place.

Therefore, Turner and Ostrander are today overruled to the extent
they suggest that the bar of Teague is inapplicable if a petitioner's
challenge is merely "predicated on" prior caselaw or if prior caselaw
merely "dictates petitioner's challenge." As the Supreme Court has
consistently held, extant caselaw must compel not only the challenge,
but the actual relief that petitioner seeks.

The result of the case in question (here, Simmons) must also have
been compelled because of the rule that the petitioner seeks. In mak-
ing this determination, of course, the "rule" must be identified at the
appropriately specific level of generality. The appropriate level of
generality for identifying the rule is that level represented by the nar-
rowest principle of law that was actually applied in order to decide
the case in question. Thus, for example, as we held in Townes v.
Murray, 68 F.3d 840 (4th Cir. 1995), cert . denied, 116 S. Ct. 831
(1996), the most specific principle of law applied in Simmons, and
therefore the "rule" of Simmons, is "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 process entitles the defendant to inform the capital sen-
tencing jury -- by either argument or instruction-- that he is parole
ineligible.'" Id. at 850 (quoting Simmons, 114 S. Ct. at 2201
(O'Connor, J., concurring in the judgment)). To frame the rule more
broadly -- for example, as that of "due process" or "the right to be
heard" or generally as "the right to rebut the State's arguments" or

                     11
"the need for reliability in capital sentencing" -- would vitiate
Teague. As the Chief Justice explained for the Court recently in Gray
v. Netherland, 1996 WL 335339 (June 20, 1996), for example,

          The dissent argues that petitioner seeks the benefit of
          [Gardner's] well-established rule, that "a capital defendant
          must be afforded a meaningful opportunity to explain or
          deny the evidence introduced against him at sentencing."
          . . . But . . . the new-rule doctrine "would be meaningless
          if applied at this level of generality."

Id. at *12 (quoting Sawyer, 497 U.S. at 236); see also Sawyer, 497
U.S. at 236 ("In petitioner's view, Caldwell [v. Mississippi, 472 U.S.
320 (1985),] was dictated by the principle of reliability in capital sen-
tencing. But the test would be meaningless if applied at this level of
generality." (emphasis added)) (citing Anderson v. Creighton, 483
U.S. 635, 639 (1987), with the following parenthetical: "[I]f the test
of `clearly established law' were to be applied at this level of general-
ity, . . . [p]laintiffs would be able to convert the rule of qualified
immunity that our cases plainly establish into a rule of virtually
unqualified liability simply by alleging violation of extremely abstract
rights.")); Gilmore v. Taylor, 508 U.S. 333, 344 (1993); Wright, 505
U.S. at 311-12 (Souter, J., concurring in the judgment).

As the Supreme Court's repeated analogy to the qualified immu-
nity analysis confirms, the new rule analysis fundamentally asks the
same question as does the qualified immunity analysis -- whether a
contrary conclusion would have been objectively unreasonable. Cf.
Hogan v. Carter, 1996 WL 292031 at *4 n.3 (4th Cir.) (en banc); 28
U.S.C. § 2254(d)(1) (as amended April 24, 1996). The varying formu-
lations for the new rule test that have, from time to time, been
employed by the Court3 are but myriad faces of the same basic
_________________________________________________________________

3 See, e.g., Teague, 489 U.S. at 301 ("In general, . . . a case announces
a new rule when it breaks new ground or imposes a new obligation on
the States or the Federal Government."); Penry, 492 U.S. at 314, 329
(quoting Teague); Butler 494 U.S. at 412 (citing Penry); Saffle, 494 U.S.
at 488 (quoting Teague); Graham, 506 U.S. at 467 (quoting Teague); see

                     12
inquiry: whether it would have been objectively unreasonable, under
the law existing at that time, for a judge to reach a contrary result to
that subsequently reached. As the Court explained in Butler, 494 U.S.
at 414, "[t]he `new rule' principle . . . validates reasonable, good-faith
interpretations of existing precedents made by state courts even
though they are shown to be contrary to later decisions." See also
Graham, 506 U.S. at 467 (quoting Butler, 494 U.S. at 414). The ques-
tion is "whether a state court considering [petitioner's] claim at the
time his conviction became final would have felt compelled by exist-
ing precedent to conclude that the rule [petitioner] seeks was required
by the Constitution." Saffle, 494 U.S. at 488 (emphasis added); see
also Graham, 506 U.S. at 467. Whenever the "outcome" of a case was
"susceptible to debate among reasonable minds," Butler, 494 U.S. at
415, or among "reasonable jurists," Sawyer, 497 U.S. at 234, then that
case announced a new rule. See also Butler, 494 U.S. at 417-18
(Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissent-
ing) ("[A] state prisoner can secure habeas relief only by showing that
the state court's rejection of the constitutional challenge was so
clearly invalid under then-prevailing legal standards that the decision
could not be defended by any reasonable jurist." (second emphasis
added)); Graham, 506 U.S. at 467, 476; Stringer, 503 U.S. at 238
(Souter, J., dissenting).

B.

As noted, the narrowest principle of law that was applied in order
to decide Simmons was that applied by Justice O'Connor in her sepa-
rate concurrence: "[w]here the State puts the defendant's future dan-
gerousness in issue, and the only available alternative sentence to
death is life imprisonment without possibility of parole, due process
_________________________________________________________________

also Teague, 489 U.S. at 301 ("To put it differently, a case announces a
new rule if the result was not dictated by precedent existing at the time
the defendant's conviction became final."); Penry, 492 U.S. at 314 (quot-
ing Teague); Butler, 494 U.S. at 412 (quoting Penry (quoting Teague));
Saffle, 494 U.S. at 488 (quoting Teague); Sawyer, 497 U.S. at 234 (quot-
ing Teague); Graham, 506 U.S. at 467 (quoting Teague); Gilmore, 508
U.S. at 340 (quoting Butler (quoting Penry (quoting Teague))); Caspari,
114 S. Ct. at 953 (quoting Teague).

                     13
entitles the defendant to inform the capital sentencing jury -- by
either argument or instruction -- that he is parole ineligible." 114 S.
Ct. at 2201 (O'Connor, J., joined by Rehnquist, C.J., and Kennedy,
J., concurring in the judgment). Therefore, unless it would have been
objectively unreasonable for a state court in 1988 (when O'Dell's
conviction became final) to conclude that the Constitution did not
require that the jury be informed of parole ineligibility, Simmons must
be held to have announced a new rule.

"Surveying the legal landscape" in 1988, Graham, 506 U.S. at 468,
a reasonable jurist would have been faced with the following caselaw.
First, that jurist would have been confronted with the cases upon
which Simmons principally relied, Gardner v. Florida, 430 U.S. 349
(1977), and Skipper v. South Carolina, 476 U.S. 1 (1986). In
Gardner, the Court vacated a death sentence because the sentencing
court had relied in part on a secret presentence report that the defen-
dant never had an opportunity to see or to rebut. The three-Justice
plurality concluded that "petitioner was denied due process of law
when the death sentence was imposed, at least in part, on the basis of
information which he had no opportunity to deny or explain." 430
U.S. at 362 (Stevens, J., joined by Stewart and Powell, JJ.). Under
Marks v. United States, 430 U.S. 188, 193 (1977), however, the hold-
ing of Gardner is the "position taken by those Members who con-
curred in the judgment[ ] on the narrowest grounds"; therefore, the
holding of Gardner is found in Justice White's opinion, in which he
concurred in the judgment on the narrow and fact-specific ground that
reliance upon secret information in sentencing a man to death violates
the Eighth Amendment -- although not necessarily due process.
Gardner, 430 U.S. at 364 (White, J., concurring in the judgment).

In 1988, a reasonable jurist would also have considered Skipper,
where the Court vacated a death sentence because, in violation of the
Eighth Amendment rule of Lockett v. Ohio, 438 U.S. 586 (1978), and
Eddings v. Oklahoma, 455 U.S. 104 (1982), the jury had been pre-
vented from hearing the defendant's evidence of previous good
behavior in jail. Skipper, 476 U.S. at 4. Specifically, the Court held
that "evidence that the defendant would not pose a danger if spared
(but incarcerated) must be considered potentially mitigating," and that
"[u]nder Eddings, such evidence may not be excluded from the sen-
tencer's consideration." Id. at 5.

                    14
The sole question upon which certiorari was granted in Skipper
was whether, under the Eighth Amendment, the lower court's deci-
sion was "inconsistent with th[e] Court's decisions in Lockett and
Eddings." Id. at 4. And the Court noted that this Eighth Amendment
issue was "the only question before [it]." Id. One footnote in Skipper,
however, read as follows:

          The relevance of evidence of probable future conduct in
          prison as a factor in aggravation or mitigation of an offense
          is underscored in this particular case by the prosecutor's
          closing argument, which urged the jury to return a sentence
          of death in part because petitioner could not be trusted to
          behave if he were simply returned to prison. Where the
          prosecution specifically relies on a prediction of future dan-
          gerousness in asking for the death penalty, it is not only the
          rule of Lockett and Eddings that requires that the defendant
          be afforded an opportunity to introduce evidence on this
          point; it is also the elemental due process requirement that
          a defendant not be sentenced to death "on the basis of infor-
          mation which he had no opportunity to deny or explain."
          Gardner v. Florida, 430 U.S. 349, 362 (1977).

Id. at 5 n.1. In addition to this footnote, which provides the strongest
suggestion that the due process rule announced in Simmons was not
new, three Justices also joined a separate opinion concluding that,
although Skipper's death sentence did not violate the Eighth Amend-
ment under Lockett and Eddings, it did violate due process under
Gardner. Id. at 9 (Powell, J., joined by Burger, C.J., and Rehnquist,
J., concurring in the judgment).

Were Gardner and Skipper the totality of the "legal landscape" in
1988, the claim that Simmons was not a new rule might, at least at
first blush, have considerable force.

Of critical significance, however, in addition to Gardner and
Skipper, a reasonable jurist in 1988 would also have confronted
California v. Ramos, 463 U.S. 992 (1983), in which the Court not
only held that a defendant was not constitutionally entitled to apprise
the jury of the Governor's power to commute a death sentence (when
the trial court had already instructed the jury of the Governor's power

                     15
to commute a life sentence without parole), but also expressly noted
with approval the practices in many states of forbidding any reference
to the possibility of pardon, commutation, or parole.

In Ramos, the Court upheld the constitutionality of a death sen-
tence under the Eighth and Fourteenth Amendments,4 where the jury
had been instructed, as required by state statute, that the Governor
possessed the power to commute a sentence of life imprisonment
without possibility of parole. Justice O'Connor, writing for the Court,
repeatedly emphasized that, with only a few exceptions, "the Court
has deferred to the State's choice of substantive factors relevant to the
penalty determination." Id. at 1001. The Court invoked Gregg v.
Georgia, 428 U.S. 153 (1976), to make the point, noting that "the
joint opinion [in Gregg] did not undertake to dictate to the State the
particular substantive factors that should be deemed relevant to the
capital sentencing decision," Ramos, 463 U.S. at 999 (emphasis in
original), and then quoting Gregg's observation that the guidance that
should be given the jury in making its sentencing determination is that
"`that the State, representing organized society, deems particularly
relevant to the sentencing decision,'" id. at 1000 (quoting Gregg, 428
U.S. at 192) (emphasis added by Ramos Court).

Importantly, the Court in Ramos also squarely rejected an argu-
ment by petitioner that was virtually indistinguishable in principle
_________________________________________________________________

4 To be sure, the Court's decision in Ramos rested primarily on the
Eighth Amendment. But the Court specifically considered, inter alia,
whether the Briggs Instruction ran afoul of the due process concerns of
reliability in sentencing that were identified in Gardner, concluding that
Gardner "provid[ed] no support for respondent." 463 U.S. at 1004.
Indeed, it concluded its opinion by reiterating its earlier determinations
that the instruction "[did] not violate any of the substantive limitations
this Court's precedents have imposed on the capital sentencing process,"
id. at 1013, including those identified in Gardner, see id. at 1000-01.

Regardless, it was apparent in 1988, as it is still today, that the Eighth
Amendment's principles inform the Due Process capital sentencing
inquiry. Therefore, a reasonable jurist could hardly be faulted either for
resorting to both lines of the Court's cases, as the Court itself has repeat-
edly done, or for relying only on the line directly implicated in the case
before him.

                     16
from that made by petitioner in Simmons. Ramos argued that an
instruction as to the Governor's power to commute a death sentence
was required under "basic principles of fairness," because, otherwise,
the court's instruction that the Governor could commute a life sen-
tence, "create[d] the misleading impression that the jury can prevent
the defendant's return to society only by imposing the death sen-
tence," id. at 1010-11, just as Simmons argued that an instruction to
the jury as to his parole ineligibility was required to eliminate the mis-
taken impression that only by imposing death could the jury prevent
his return into society. As the Court explained petitioner's argument
in Simmons:

          Petitioner argued that, in view of the public's misunder-
          standing about the meaning of "life imprisonment" in South
          Carolina, there was a reasonable likelihood that the jurors
          would vote for death simply because they believed, mis-
          takenly, that petitioner eventually would be released on
          parole.

114 S. Ct. at 2191. Notwithstanding, the Court dismissed Ramos'
argument on the ground, inter alia, that the entire instruction "satis-
fies the Jurek [v. Texas, 428 U.S. 262 (1976),] requirement that
`[w]hat is essential is that the jury have before it all possible relevant
information about the individual defendant whose fate it must deter-
mine.'" Ramos, 463 U.S. at 1012 n.29 (quoting Jurek, 428 U.S. at
276) (emphasis added). Justice Marshall in dissent in Ramos even
criticized the majority's rejection of this instruction on precisely the
same grounds that the Simmons Court ultimately employed in requir-
ing an instruction as to parole ineligibility:

          The Briggs Instruction may well mislead the jury into
          believing that it can eliminate any possibility of commuta-
          tion by imposing the death sentence. It indicates that the
          Governor can commute a life sentence without possibility of
          parole, but not that the Governor can also commute a death
          sentence. The instruction thus erroneously suggests to the
          jury that a death sentence will assure the defendant's per-
          manent removal from society whereas the alternative sen-
          tence will not.

                     17
         Presented with this choice, a jury may impose the death sen-
         tence to prevent the Governor from exercising his power to
         commute a life sentence without possibility of parole.

Ramos, 463 U.S. at 1016 (Marshall, J., dissenting) (citations and foot-
note omitted, emphasis added)). Compare Simmons, 114 S. Ct. at
2193 ("In this case, the jury reasonably may have believed that peti-
tioner could be released on parole if he were not executed. To the
extent this misunderstanding pervaded the jury's deliberations, it had
the effect of creating a false choice between sentencing petitioner to
death and sentencing him to a limited period of incarceration.").5
_________________________________________________________________

5 Indeed, one federal district court rejected a pre-Simmons claim very
much like that in Simmons on precisely this ground:

         While Ramos did not address the precise issue raised here, it is
         instructive. . . . The Briggs Instruction [reviewed in Ramos]
         informed the jury that a sentence of life imprisonment without
         parole may be commuted by the governor to a sentence that
         includes the possibility of parole. The jury in Ramos was not told
         that the governor could similarly commute a sentence of death
         to a lesser punishment. The California Supreme Court reversed
         the death sentence, in part because this combination of instruc-
         tions allowed the jury to believe mistakenly that the "only way
         to keep the defendant off the streets is to condemn him to death."
         The instructions given . . . [here] could also produce this misap-
         prehension in jurors: telling the jury that the alternative to death
         is imprisonment might lead it to believe that public safety would
         be assured only through the imposition of the death penalty.
         Despite this concern, the Supreme Court upheld the constitution-
         ality of the Briggs Instruction in Ramos, finding that it did not
         preclude individualized sentencing determination or introduce a
         speculative element in jury deliberation. . . . In light of Ramos,
         [petitioner's] appeal to the general principle that imposition of
         capital punishment must be based on reason, rather than emotion
         and caprice, is an insufficient basis on which to grant relief. All
         constitutional rules can be stated in very general terms, but gen-
         eral principles do not compel specific rules.

Albanese v. McGinnis, 823 F.Supp. 521, 565-66 (N.D. Ill. 1993) (cita-
tions and footnote omitted), aff'd 19 F.3d 21 (7th Cir. 1994), cert.
denied, 115 S. Ct. 1114 (1995).

                    18
Although the Ramos Court noted that it considered it desirable for
the jury to have this information concerning the Governor's power to
commute a death sentence, and as much other information as possible
during sentencing, 463 U.S. at 1009 n.23, it nevertheless found that
the trial court's refusal to inform the jury of the Governor's power to
commute the death sentence (while at the same time informing it of
his power to commute life imprisonment) was in no way unconstitu-
tional, see id. at 1013 ("[The State's] failure to inform the jury also
of the Governor's power to commute a death sentence does not render
it constitutionally infirm.").

No doubt, a reasonable jurist in 1988, considering whether the
Constitution necessarily required the rule of Simmons, would also
have focused immediately upon the broad principles of deference to
state decisions regarding the substantive factors that juries may con-
sider during sentencing, which underlay the Court's decision to
uphold California's choice to inform the jury of the Governor's power
to commute a life sentence but not his power to commute a death sen-
tence. In punctuation of this principle, the Court concluded its entire
opinion as follows:

          In sum, the Briggs Instruction does not violate any of the
          substantive limitations this Court's precedents have imposed
          on the capital sentencing process. It does not preclude indi-
          vidualized sentencing determinations or consideration of
          mitigating factors, nor does it impermissibly inject an ele-
          ment too speculative for the jury's deliberation. Finally, its
          failure to inform the jury also of the Governor's power to
          commute a death sentence does not render it constitutionally
          infirm. Therefore, we defer to the State's identification of
          the Governor's power to commute a life sentence as a
          substantive factor to be presented for the sentencing jury's
          consideration.

          Our conclusion is not intended to override the contrary
          judgment of state legislatures that capital sentencing juries
          in their States should not be permitted to consider the Gov-
          ernor's power to commute a sentence. . . . We sit as judges,
          not as legislators, and the wisdom of the decision to permit

                    19
          juror consideration of possible commutation is best left to
          the States.

Id. at 1013-14 (footnote omitted) (emphasis added).

Even more so, that jurist would have fixed immediately upon foot-
note 30 within this concluding passage. As Justice O'Connor, the
author of Ramos and the necessary fifth vote in Simmons, observed
in Simmons itself, see 114 S. Ct. at 2200 (O'Connor, J., concurring
in the judgment) (emphasis added), Ramos"noted with approval"
that,

          [m]any state courts have held it improper for the jury to con-
          sider or to be informed -- through argument or instruction
          -- of the possibility of commutation, pardon, or parole.

Ramos, 463 U.S. at 1013 n.30 (emphasis added). In that footnote pas-
sage in Ramos, the Court even cited "with approval" a Georgia statute
"prohibiting argument as to the possibility of pardon, parole, or clem-
ency," and numerous state cases holding, for example, that "`[a]ny
consideration of the possibility of parole as such simply is
irrelevant,'" and that "consideration of parole [is] outside [the] proper
scope of jury's duty as fixed by statute." Id.

In fact, not only the majority, but the full Court, recognized and
approved, as constitutionally permissible, the practice of "nearly
every jurisdiction which has considered the question" of not "permit-
t[ing] [juries] to consider commutation and parole." Id. at 1025 (Mar-
shall, J., dissenting, joined by Brennan and Blackmun, JJ.) (emphasis
added); see also id. at 1029 (Stevens, J., dissenting). The dispute
between the majority and the dissenters was whether the States could
ever allow the jury to consider matters such as commutation, pardons
or parole. The majority concluded that the decision to allow jury con-
sideration of these matters should be left to the discretion of the
States, but the dissenters went even further, arguing that States should
never be allowed to permit instruction or argument to the jury con-
cerning commutation, pardon, or parole:

          The [Briggs] [I]nstruction invites juries to impose the death
          sentence to eliminate the possibility of eventual release

                     20
          through commutation and parole. Yet that possibility bears
          no relation to the defendant's character or the nature of the
          crime, or to any generally accepted justification for the
          death penalty. . . . In my view, the Constitution forbids the
          jury to consider any factor which bears no relation to the
          defendant's character or the nature of his crime, or which
          is unrelated to any penological objective that can justify
          imposition of the death penalty. Our cases establish that a
          capital sentencing proceeding should focus on the nature of
          the criminal act and the character of the offender. . . . Con-
          siderations such as the extent of premeditation, the nature of
          the crime, and any prior criminal activity have been consid-
          ered relevant to the determination of the appropriate sen-
          tence. . . . [T]he mere possibility of a commutation "is
          wholly and utterly foreign to" the defendant's guilt and "not
          even remotely related to" his blameworthiness. That possi-
          bility bears absolutely no relation to the nature of the
          offense or the character of the individual. . . . The possibility
          of commutation has no relationship to the state purposes that
          this Court has said can justify the death penalty.

Id. at 1021-23 (Marshall, J., dissenting) (emphasis added, footnotes
and citations omitted).

Looking to the actual practice in the several states as support for
his argument, Justice Marshall continued:

          The propriety of allowing a sentencing jury to consider the
          power of a Governor to commute a sentence or of a parole
          board to grant parole has been considered in 28 jurisdic-
          tions in addition to California. Of those jurisdictions, 25
          have concluded, as did the California Supreme Court in this
          case, that the jury should not consider the possibility of par-
          don, parole, or commutation.

Id. at 1026 (emphasis added, footnotes omitted). And, as support for
the proposition that "in those States which formerly permitted jury
consideration of parole and commutation the trend has been to
renounce the prior decisions," Justice Marshall cited the very same
Georgia statute cited by the majority in footnote 30 as "forbidding any

                     21
jury argument concerning commutation or parole." Id. at 1027 & n.16
(referencing Ga. Code Ann. § 27-2206 (1972), the precursor to Ga.
Code Ann. 17-8-76) (emphasis added)). Even more strikingly, Justice
Marshall cited Clanton v. Commonwealth , 286 S.E.2d 172 (Va.
1982), which affirmed a trial court's refusal to answer the jury's ques-
tion as to whether the capital defendant would be eligible for parole
and which reaffirmed Hinton v. Commonwealth, 247 S.E.2d 704 (Va.
1978), and Stamper v. Commonwealth, 257 S.E.2d 808 (Va. 1979),
cert. denied, 445 U.S. 972 (1980), both of which were expressly
relied upon by the trial court below to deny O'Dell's request that he
be allowed to argue parole ineligibility to the jury, J.A. at 2378-79,
2382-85. See Ramos, 463 U.S. at 1026 n.13 (Marshall, J., dissenting);
see also id. (citing Summers v. State, 467 P.2d 98, 100 (Nev. 1970)
("reaffirming Serrano v. State, 447 P.2d 497 (Nev. 1968), which
instructed [the] jury to assume that life without parole means exactly
that") (parenthetical from Ramos, emphasis added)).6

In hindsight, and particularly in the wake of Simmons, it might be
suggested that the Court in Ramos was expressing approval only of
those state laws forbidding reference to the affirmative possibility of
parole, and not of those prohibiting reference to the legal
impossibility of parole, although to our knowledge that has never
been suggested, and petitioner does not do so here. We believe, how-
ever, that, even with the Court's observation that "States are free to
provide greater protections in their criminal justice system than the
Federal Constitution requires," 463 U.S. at 1013-14, such a sugges-
tion would border on the disingenuous, considering that the very state
sentencing law that the Court was reviewing in Ramos, like numerous
other states' laws then in effect and of which the Court was aware,7
_________________________________________________________________

6 Justice Marshall was relying primarily, although not exclusively, on
the Eighth Amendment for his conclusion that the Constitution forbids
any reference to the possibility of parole. It was, however, at the very
least reasonable for state jurists to have concluded that the Due Process
Clause did not require what Justice Marshall believed the Eighth Amend-
ment forbade, particularly given the majority's position that such matters
are properly committed to the discretion of the individual states.

7 See, e.g., Ala. Code § 13A-5-46(e); Ark. Code Ann. 5-4-603(b); Cal.
Pen. Code § 190.3; Conn. Gen. Stat. § 53a-46a(f); Del. Code Ann. tit. 11,
§ 4209(a); La. Code Crim. Proc. Ann. art. 905.6; Mo. Ann. Stat.

                    22
provided for "life without possibility of parole" as the only alternative
to death, id. at 994-95, and the Court nonetheless chose the broad, cat-
egorical language that it did, without even a hint that it intended such
a distinction. Indeed, Justice O'Connor's concurrence in the Simmons
judgment, "despite [the Court's] general deference to state decisions
regarding what the jury should be told about sentencing," 114 S. Ct.
at 2201 (emphasis added) -- an explicit reference to her opinion for
the Court in Ramos and to the discussion at pages 1013-14 and n.30
in particular, see id. at 2200 -- all but confirms that the Court
intended no such distinction in Ramos. And, of course, the reasoning
of the Ramos dissent -- that the jury should be forbidden from con-
sidering anything beyond the particular defendant's character and his
crime -- which Justice Blackmun, the author of the plurality in
Simmons, expressly joined, would not even admit such a distinction.

The question, in any event, is not whether in fact the Court in this
passage was limiting its approval to those state laws prohibiting refer-
ence to the possibility that the defendant might become parole eligi-
ble. The only question is whether it would have been objectively
unreasonable for jurists not to read the passage as so limited. It would
be the height of pedanticism to suggest that it would have been objec-
tively unreasonable for the 1988 jurist to have understood the passage
as extending to all state laws prohibiting comment on parole, includ-
ing those prohibiting comment as to parole ineligibility. Both the
majority's and the dissent's language unquestionably swept broadly,
suggesting no distinction whatsoever. And Ramos' holding that the
State of California was not constitutionally required to inform the jury
that the Governor could also commute a death sentence, in the face
of petitioner's argument that not to do so left the jury with the belief
_________________________________________________________________

§ 565.030.4; N.H. Rev. Stat. Ann. § 630:5 (IV); Pa. Stat. Ann. tit. 61,
§ 331.21; Va. Code § 53.1-151(B1); Wash. Rev. Code Ann.
§ 10.95.030(1). The Court had been aware of similar laws for at least a
decade. See Schick v. Reed, 419 U.S. 256, 267 & n.7 (1974) (noting that
"`no-parole' condition attached to the commutation of [petitioner's]
death sentence is similar to sanctions imposed by legislatures such as
mandatory minimum sentences or statutes otherwise precluding parole"
and citing 21 U.S.C. § 848(c); Mass. Gen. Laws Ann., c. 265, § 2 (1970);
and Nev. Rev. Stat., Tit. 16, c. 200.030, § 6, c. 200.363, § 1(a) (1973)).

                    23
that it could prevent his return to society only by sentencing him to
death, would have been analytically indefensible had the Court there
drawn such a distinction. Even in Simmons, which ultimately consti-
tutionalized this very distinction, not a single Justice so much as sug-
gested that the distinction had actually been drawn in Ramos, ten
years earlier. Under these circumstances, to suggest now that the dis-
tinction was made then, and that the several states were objectively
unreasonable in not divining it at the time, would be not only demor-
alizing to the state and lower courts, but also destructive of the princi-
ples of comity and finality that inspired the "new rule" doctrine to
begin with.

Finally, although the Supreme Court itself seemed to consider
Caldwell v. Mississippi, 472 U.S. 320 (1985), wholly irrelevant to the
question decided in Simmons,8 the reasonable jurist in 1988 would
_________________________________________________________________

8 The Court did not so much as cite Caldwell in Simmons, foreclosing
any argument (which O'Dell does not make, in any event) that Caldwell
somehow compelled the result in Simmons. Presumably, Simmons did
not neglect Caldwell merely because that case was decided under the
Eighth Amendment, considering the Court's liberal reliance upon Eighth
Amendment cases elsewhere in the Simmons opinions and its routine
cross-pollenization between its Eighth Amendment and its Due Process
lines of cases in the capital sentencing context. Almost certainly, the
Court avoided relying on Caldwell because it considered that case as lim-
ited to the affirmative provision of inaccurate information as to the
proper role of the jury, as the Court had expressly held in 1986. Darden
v. Wainwright, 477 U.S. 168, 183 n.15 (1986); see infra note 9; see also
Sawyer , 497 U.S. at 233 (describing Caldwell as having held that "the
Eighth Amendment prohibits the imposition of a death sentence by a sen-
tencer that has been led to the false belief that the responsibility for
determining the appropriateness of the defendant's capital sentence rests
elsewhere"); Dugger v. Adams, 489 U.S. 401, 407 (1989) ("[I]f the chal-
lenged instructions accurately described the role of the jury under state
law, there is no basis for a Caldwell claim. To establish a Caldwell viola-
tion, a defendant necessarily must show that the remarks to the jury
improperly described the role assigned to the jury by local law."). As the
Chief Justice concluded for the Court in Romano v. Oklahoma, 114 S.
Ct. 2004, 2010 (1994):

          The infirmity identified in Caldwell is simply absent in this case:
          Here the jury was not affirmatively misled regarding its role in
          the sentencing process. The evidence at issue was neither false
          at the time it was admitted, nor did it even pertain to the jury's
          role in the sentencing process.

                     24
have at least perused that case as well. In Caldwell, the prosecutor had
argued to the jury that it would not be finally responsible for the
imposition of a death penalty because its decision would automati-
cally be reviewed by the state's Supreme Court. The Mississippi
Supreme Court rejected Caldwell's claim that such an argument vio-
lated the Eighth Amendment, concluding that, "`[b]y [Ramos'] rea-
soning, states may decide whether it is error to mention to jurors the
matter of appellate review.'" Id. at 326 (quoting Caldwell v. State,
443 So.2d 806, 813 (Miss. 1983)). The Supreme Court reversed, with
a plurality of the Court characterizing as "too broad a view of Ramos"
Mississippi's reading of that case as "[holding] that States are free to
expose capital sentencing juries to any information and argument con-
cerning postsentencing procedures." 472 U.S. at 335. Rather, the plu-
rality explained, the Court upheld the instruction in Ramos because
it was accurate and relevant to a legitimate penological objective. Id.
And on this basis, the Caldwell plurality distinguished the prosecu-
tor's argument there before it:

          In contrast [to the instruction in Ramos], the argument at
          issue here cannot be said to be either accurate or relevant to
          a valid penological interest. The argument was inaccurate,
          both because it was misleading as to the nature of the appel-
          late court's review and because it depicted the jury's role in
          a way fundamentally at odds with the role that a capital sen-
          tencer must perform. Similarly, the prosecutor's argument is
          not linked to any arguably valid sentencing consideration.

Id. at 336.

Significantly, Justice O'Connor joined the judgment and the opin-
ion of the Court, except that part in which Justice Marshall, in what
consequently was only a plurality, discussed Ramos and the appropri-
ateness of states allowing their juries to consider matters such as
postsentencing appellate review. Id. at 341 (O'Connor, J., concurring
in part and concurring in the judgment). While Justice O'Connor
agreed with the plurality that the prosecutor's argument was inaccu-
rate and misleading, and therefore violative of the Eighth Amend-
ment, she disagreed with the plurality's conclusion regarding the
complete irrelevancy to the sentencing decision of information con-
cerning appellate review. Justice Marshall had observed for the plu-

                    25
rality, adopting the same position that he had articulated in dissent in
Ramos, that the availability of appellate review "is simply a factor
that in itself is wholly irrelevant to the determination of the appropri-
ate sentence." Id. at 336. But Justice O'Connor's opinion, which, as
the Court held in Romano, 114 S. Ct. at 2010, "is controlling" under
Marks, defended her majority position in Ramos and reaffirmed that
the Constitution does not prohibit a jury from receiving accurate
information as to state postsentencing law:

          The Court correctly observes that Ramos does not imply that
          "States are free to expose capital sentencing juries to any
          information and argument concerning postsentencing proce-
          dures" no matter how inaccurate. Certainly, a misleading
          picture of the jury's role is not sanctioned by Ramos. But
          neither does Ramos suggest that the Federal Constitution
          prohibits the giving of accurate instructions regarding
          postsentencing procedures.

Caldwell, 472 U.S. at 342 (O'Connor, J., concurring in part and con-
curring in the judgment) (citations omitted; emphasis added).

And critically as it bears on whether Simmons was required in the
face of Ramos, Justice O'Connor specifically addressed herself to the
"inaccuracy and unreliability" that results not from affirmatively pro-
viding false information, but merely from the failure to disabuse
jurors of every misconception they might have about the state's
postsentencing processes -- the very kind of "inaccuracy and unreli-
ability" that the Court eventually held required the rule in Simmons:

          Jurors may harbor misconceptions about the power of state
          appellate courts or, for that matter, this Court to override a
          jury's sentence of death. Should a State conclude that the
          reliability of its sentencing procedure is enhanced by accu-
          rately instructing the jurors on the sentencing procedure,
          including the existence and limited nature of appellate
          review, I see nothing in Ramos to foreclose a policy choice
          in favor of jury education.

Caldwell, 472 U.S. at 342. Compare Simmons, 114 S. Ct. at 2191,
2193. Of course, saying that the states may choose, as a matter of pol-

                     26
icy, to attempt to eliminate any pre-existing juror misconceptions
about postsentencing procedures is necessarily to say that they are not
constitutionally required to do so.

In sum, Caldwell would have appeared to the reasonable jurist as
simply another chapter in the continuing debate on the Court over the
extent to which states should be allowed discretion over whether to
inform their juries of state postsentencing laws and procedures -- a
chapter in which the Court, per Justice O'Connor, reconfirmed the
broad discretion retained by the states over whether to apprise juries
of state postsentencing laws. In Ramos, for five Members of the
Court, and again in Caldwell for four, but effectively five,9 Justice
O'Connor concluded that the states should be afforded the widest pos-
sible discretion; and in Ramos, and again in Caldwell, Justice Mar-
shall argued for four Members of the Court that they should be
allowed none at all. But both sides of the Court agreed, in both Ramos
and Caldwell, that should the states choose to provide information as
to postsentencing laws and procedures, they cannot affirmatively mis-
lead the jury as to those laws and procedures.

C.

A reasonable jurist in 1988, thus, would have found himself in
something of a quandary. Footnote one of Skipper, in combination
with the plurality opinion in Gardner, at least suggested that due pro-
cess might compel the rule in Simmons. However, the holding, rea-
soning, and express language of Ramos, and in particular the text at
and of footnote 30, seemed to render it all but a certainty that the rule
of Simmons was not only not compelled, but forbidden -- a conclu-
sion only reinforced by the Ramos dissenters and by Caldwell. As
_________________________________________________________________

9 Justice Powell took no part in the consideration of Caldwell, so it
might appear that only the three Caldwell dissenters agreed with Justice
O'Connor. However, Justice Powell joined Justice O'Connor's majority
opinion in Ramos, and, as he said for the majority in Darden v.
Wainwright, decided only one year after Caldwell, "Caldwell is relevant
only to certain types of comment -- those that mislead the jury as to its
role in the sentencing process in a way that allows the jury to feel less
responsible than it should for the sentencing decision." 477 U.S. at 183
n.15.

                    27
even the Simmons plurality recognized, the "States that do not provide
capital-sentencing juries with any information regarding parole ineli-
gibility seem to rely . . . on the proposition that Ramos held that such
determinations are purely matters of state law." Simmons, 114 S. Ct.
at 2195-96 & n.8 (citing the decision of the Virginia Supreme Court
on O'Dell's direct appeal).

1.

Since the reasonable state or federal lower court jurist was not at
liberty to ignore either Gardner/Skipper or Ramos/Caldwell, and
since the Supreme Court apparently viewed these cases as all compat-
ible -- it having not overruled Gardner in Ramos or Caldwell, nor
Ramos and Caldwell in Skipper-- that jurist would have been
obliged to reconcile these cases by finding some "meaningful[ ] dis-
tin[ction]" between them, see Wright, 505 U.S. at 304 (O'Connor, J.,
concurring in the judgment). Upon examining the cases, an entirely
reasonable distinction would have suggested itself-- a distinction of
Gardner and Skipper, on the one hand, from Ramos and Caldwell on
the other, much like the distinction the Court drew in Saffle between
the rule of Lockett and Eddings (the key precedents underlying
Skipper), and the rule that Parks was there urging. In Saffle, the Court
concluded that Lockett and Eddings "place clear limits on the ability
of the State to define the factual bases upon which the capital sentenc-
ing decision must be made." Saffle, 494 U.S. at 490 (emphasis added)
(citing Skipper, with the following parenthetical: "exclusion of evi-
dence regarding defendant's postoffense conduct" (emphasis added)).
The Court then contrasted that rule with petitioner's proposed rule
that states could not constitutionally prohibit juries from sentencing
based upon sympathy and empathy:

          Parks asks us to create a rule relating, not to what mitigating
          evidence the jury must be permitted to consider in making
          its sentencing decision, but to how it must consider the miti-
          gating evidence. There is a simple and logical difference
          between rules that govern what factors the jury must be per-
          mitted to consider in making its sentencing decision and
          rules that govern how the State may guide the jury in con-
          sidering and weighing those factors in reaching a decision.
          We thus cannot say that the large majority of federal and

                    28
          state courts that have rejected challenges to antisympathy
          instructions similar to that given at Parks' trial have been
          unreasonable in concluding that the instructions do not vio-
          late the rule of Lockett and Eddings.

Id.

As Saffle distinguished between Lockett's and Eddings' rule as to
what mitigating evidence the jury may consider, from Park's pro-
posed rule as to how the jury may consider that evidence, so also a
jurist in 1988 could reasonably have distinguished Gardner's and
Skipper's rule as to the defendant's right to rebut prosecution claims
with factual evidence, from Ramos' rule (and Simmons' rule) as to the
defendant's right to rebut prosecution claims with arguments from
state law.

That is, a reasonable jurist could have concluded that the due pro-
cess principle of Gardner and Skipper was that a trial court could not
deny a capital defendant the opportunity to rebut arguments made by
the State with relevant factual evidence about himself, his character,
and his particular offense. Thus, the Court required the secret presen-
tence report in Gardner, which provided "factual information" upon
which the judge relied in sentencing Gardner to death, Gardner, 430
U.S. at 353 (plurality); id. at 364 (White, J., concurring in the judg-
ment) ("secret information relevant to the `character and record of the
individual offender'"), be made known to the defendant so that he
could attempt to rebut it with contrary "factual information." See also
id. at 360 (plurality) ("Our belief that debate between adversaries is
often essential to the truth-seeking function of trials requires us . . .
to recognize the importance of giving counsel an opportunity to com-
ment on facts which may influence the sentencing decision in capital
cases." (emphasis added)). And, thus, the prosecution's argument in
Skipper that the defendant would pose a future danger and would
"likely rape other prisoners," Skipper, 476 U.S. at 3, necessitated that
the defendant be allowed to rebut this argument with evidence of his
"past conduct," id. at 5, namely good behavior while previously incar-
cerated. As the Court emphasized at the outset of its opinion in
Skipper,

          [t]here is no disputing that this Court's decision in Eddings
          requires that in capital cases "`the sentencer .. . not be pre-

                     29
          cluded from considering, as a mitigating factor, any aspect
          of a defendant's character or record and any of the circum-
          stances of the offense that defendant proffers as a basis for
          a sentence less than death.'" Equally clear is the corollary
          rule that the sentencer may not refuse to consider or be pre-
          cluded from considering "any relevant mitigating evidence."

Id. at 4 (citations omitted, emphasis added).10

In contrast, that 1988 jurist could have and, indeed, would have
most reasonably understood Ramos, as apparently almost every jurist
in fact did, as setting forth the principle that whether to instruct juries
on state law -- like the governor's power to commute a sentence or
the parole board's power to parole a prisoner -- is a decision left to
the "wisdom of . . . the States" by the Constitution. Ramos, 463 U.S.
at 1014; see also id. at 1013 & n.30. The Court itself seems to have
understood Ramos this way when it held in 1990 in Sawyer that its
decision in Caldwell was a new rule under Teague. As the Court said
there, although the Mississippi Supreme Court's 1983 holding "with-
out dissent . . . that Ramos stood for the proposition that `states may
decide whether it is error to mention to jurors the matter of appellate
review,'" may in retrospect have proven to be incorrect to the limited
extent that it failed to recognize that a state may not provide inaccu-
rate or misleading information even about postsentencing procedures,
it was nonetheless a reasonable conclusion at the time. 497 U.S. at
237 (quoting Caldwell v. State, 443 So.2d 806 (Miss. 1983)). And, of
course, nothing in Caldwell called into question (indeed, as noted,
that case only confirmed) Ramos' deference to the states on whether
to instruct juries as to state postsentencing laws, provided that any
information the states choose affirmatively to provide is accurate. As
Justice O'Connor explained:
_________________________________________________________________

10 At this juncture in Skipper, the Court was discussing the require-
ments of the Eighth Amendment, not those of the Due Process Clause.
However, the most natural implication would be that the rebuttal evi-
dence that the defendant must be allowed to introduce under the Due
Process Clause would be the same as that which the Court held he must
be allowed to introduce under the Eighth Amendment-- evidence con-
cerning his character and offense.

                    30
          The Court today, relying in part on my opinion in Caldwell
          v. Mississippi, rejects petitioner's claim that the introduction
          of evidence of a prior death sentence impermissibly under-
          mined the jury's sense of responsibility. I write separately
          to explain why in my view petitioner's Caldwell claim fails.
          The inaccuracy of the prosecutor's argument in Caldwell
          was essential to my conclusion that the argument was
          unconstitutional. An accurate description of the jury's role
          -- even one that lessened the jury's sense of responsibility
          -- would have been constitutional. [Caldwell, 472 U.S. at
          342] ("a misleading picture of the jury's role is not sanc-
          tioned by [California v. Ramos], [b]ut neither does Ramos
          suggest that the federal Constitution prohibits the giving of
          accurate instructions regarding post-sentencing proce-
          dures").

Romano, 114 S. Ct. at 2013 (O'Connor, J., concurring).

2.

Indeed, this very distinction between facts and legal power to sub-
sequently modify sentences was suggested by Justice O'Connor in
Simmons itself:

          Unlike in Skipper, where the defendant sought to introduce
          factual evidence tending to disprove the State's showing of
          future dangerousness, petitioner [here] sought to rely on the
          operation of South Carolina's sentencing law in arguing that
          he would not pose a threat to the community if he were sen-
          tenced to life imprisonment.

Simmons, 114 S. Ct. at 2200 (O'Connor, J., concurring in the judg-
ment) (emphasis added). Even Jonathan Dale Simmons himself drew
this distinction in arguing for the rule of Simmons. See Petitioner's
Br., Simmons v. South Carolina, No. 92-9059 (1994), at *35
("Skipper concerned the exclusion of evidence, rather than the with-
holding of accurate legal information from the jury.").

And, at the very least, this was a reasonable distinction in 1988,
considering also that relevant factual information, like secret sentenc-

                    31
ing reports or prior good behavior, cannot change with time, but a
state's legal standards and post-conviction procedures, like eligibility
for commutation or parole, can always change long after the sentenc-
ing jury renders its verdict. Cf. Ramos, 463 U.S. at 1020 (Marshall,
J., dissenting) ("To invite the jury to indulge in such speculation is to
ask it to foretell numerous imponderables: the policies that may be
adopted by unnamed future Governors and parole officials, . . . as
well as any other factors that might be deemed relevant to the com-
mutation and parole decisions. Yet these are questions that `no human
mind can answer . . . because they rest on future events which are
unpredictable.'" (emphases added)). But see Simmons, 114 S. Ct. at
2195. Moreover, this was a distinction that followed directly from the
Court's holding in Jurek, which was reaffirmed in Ramos, that, under
the Eighth Amendment, "[w]hat is essential is that the jury have
before it all possible relevant information about the individual
defendant whose fate it must determine." Jurek, 428 U.S. at 276
(emphasis added); see also Ramos, 463 U.S. at 1006, 1012 n.29. And
it was factual evidence about the Eighth Amendment factors relevant
to the individual defendant which Gardner and Skipper had held
defendants had a due process right to introduce in rebuttal of prosecu-
tion arguments concerning these factors. Not until Simmons itself had
the Court ever held that there was a due process right to rebut prose-
cution arguments with evidence unrelated to the defendant's character
and crime. Cf. Sawyer, 497 U.S. at 236 ("It is beyond question that
no case prior to Caldwell invalidated a prosecutorial argument as
impermissible under the Eighth Amendment.").

That the Supreme Court in Simmons ultimately resolved any ten-
sion between the Gardner/Skipper right to rebut state arguments with
factual evidence, and Ramos' pronouncement that the states are owed
deference as to whether to instruct their juries on the implications of
state laws governing the powers of commutation and parole, and that
it resolved that tension by permitting argument based upon state law
in the narrow circumstance of capital cases where future dangerous-
ness is argued and the defendant is parole ineligible, is, of course, not
determinative of the new rule inquiry. The question is not whether the
distinction between arguments from factual evidence concerning the
defendant's character and offense and arguments from state law itself
was necessarily correct, or whether it was ultimately accepted by the
Court as dispositive; rather, the only question is whether it would

                     32
have been objectively unreasonable for a jurist in 1988 -- forced to
grapple with and reconcile Gardner, Skipper, Ramos, and Caldwell --
to have drawn this distinction, and therefore to have concluded that
the rule in Simmons was not compelled. See Wright, 505 U.S. at 304
(O'Connor, J., concurring in the judgment) ("To determine what
counts as a new rule, Teague requires courts to ask whether the rule
a habeas petitioner seeks can be meaningfully distinguished from that
established by binding precedent at the time his state court conviction
became final."). The answer to this latter question is most assuredly
"no." In no sense would this have been an "illogical or even a grudg-
ing application," Butler, 494 U.S. at 415, of these cases, as evidenced
by the fact that Justice O'Connor recognized the very same distinction
in her opinion in Simmons.

Even the Simmons plurality seems to have acknowledged as much.
After noting that "[t]he few states that do not provide capital-
sentencing juries with any information regarding parole ineligibility
seem to rely . . . on the proposition that California v. Ramos held that
such determinations are purely matters of state law," Simmons, 114 S.
Ct. at 2195-96, the plurality implicitly validated the reasonableness of
this reliance, conceding that "[i]t is true that Ramos stands for the
broad proposition that [the Court] generally will defer to a State's
determination as to what a jury should and should not be told about
sentencing," a proposition with which the full Court agreed, id.; see
also id. at 2200 (O'Connor, J., concurring in the judgment) ("The
decision whether or not to inform the jury of the possibility of early
release is generally left to the States."). In other words, the Court
itself seemed to understand that it had chosen to recognize in
Simmons yet another exception to what was (and is still today) indis-
putably its general rule of deference to the states on whether to inform
their juries of state law governing such matters as commutation and
parole. See, e.g., Simmons, 114 S. Ct. at 2201 (O'Connor, J., concur-
ring in the judgment) ("[D]espite our general deference to state deci-
sions regarding what the jury should be told about sentencing, I agree
that due process requires . . . ."); see also Johnson v. Scott, 68 F.3d
106, 111 n.11 (5th Cir. 1995), cert. denied, 116 S. Ct. 1358 (1996).11
_________________________________________________________________

11 As the Fifth Circuit explained in Johnson,

          Simmons . . . announce[d] a new rule because it held that in some
          situations the states are no longer free to decide whether an

                    33
In holding that Simmons announced a new rule, we recognize that
Justice Blackmun stated in his opinion in Simmons that "[t]he trial
court's refusal to apprise the jury of information crucial to its sentenc-
ing determination . . . cannot be reconciled with our well-established
precedents interpreting the Due Process Clause," and that "[t]he prin-
ciple announced in Gardner [and] reaffirmed in Skipper . . . compels"
this conclusion. Simmons, 114 S. Ct. at 2194 (Blackmun, J.) (empha-
sis added). However, not only is this dicta, it is merely that of a plu-
rality of the Court. Notably, Justice O'Connor's concurrence in the
judgment, joined by the Chief Justice and Justice Kennedy, and nec-
essary for the Simmons majority, avoids any suggestion that the
Court's decision was "compelled" by prior caselaw. In any event, the
Court itself has admonished that categorical language about the
degree to which a decision on the merits is controlled by prior deci-
sions does not determine whether that decision was compelled for
new rule purposes. See, e.g., Butler, 494 U.S. at 415. As the Court
stated in Butler:

          [T]he fact that a court says that its decision is within the
          "logical compass" of an earlier decision, or indeed that it is
          "controlled" by a prior decision, is not conclusive for pur-
          poses of deciding whether the current decision is a"new
          rule" under Teague. Courts frequently view their decisions
          as being "controlled" or "governed" by prior opinions even
          when aware of reasonable contrary conclusions reached by
          other courts.

Id. We do not ascribe any particular significance to the fact that Jus-
tice Blackmun used the word "compels" in Simmons, instead of "con-
trolled" or "within the logical compass of," as used by the Court in
Butler. The point of the Butler passage, as we understand it, is that
the hortatory dicta used in opinions to underscore their faithfulness to
precedent should not be considered binding upon the separate ques-
_________________________________________________________________

          instruction on parole should be given. This is inconsistent with
          the Court's earlier ruling in California v. Ramos. In Ramos, the
          Court held, inter alia, that whether or not an instruction on post-
          sentencing contingencies was appropriate remained properly in
          the hands of the states.

68 F.3d at 111 n.11 (emphasis added).

                     34
tion of whether they announced a new rule under Teague. Cf. Penry,
492 U.S. at 353 (Scalia, J., dissenting) ("In a system based on prece-
dent and stare decisis, it is the tradition to find each decision `inher-
ent' in earlier cases . . . .").

D.

Our conclusion that the determination in 1988 that the Constitution
did not require O'Dell be allowed to argue parole ineligibility was a
"reasonable, good-faith interpretation[ ] of existing precedents,"
Butler, 494 U.S. at 414, is "confirmed by the experience of the lower
courts." Caspari, 114 S. Ct. at 955.

As Justice Kennedy noted for the Court in Sawyer, "[s]tate courts
are coequal parts of our national judicial system and give serious
attention to their responsibilities for enforcing the commands of the
Constitution." 497 U.S. at 241. Because "[c]onstitutional error is not
the exclusive province of the federal courts, . . . in the Teague analy-
sis the reasonable views of state courts are entitled to consideration
along with those of federal courts." Caspari, 114 S. Ct. at 956. In
1988, the Virginia Supreme Court, which, "as a state court, is the pri-
mary beneficiary of the Teague doctrine," Stringer, 503 U.S. at 237,
had repeatedly held that "it [is] the jury's duty to assess the penalty,
irrespective of considerations of parole." Poyner, 329 S.E.2d at 828;
see also Stamper, 257 S.E.2d at 821 (expressly relied upon by the trial
court in denying O'Dell's request, J.A. at 2378-79); Williams v.
Commonwealth, 360 S.E.2d 361, 368 (Va. 1987) ("A reduced sen-
tence is not the responsibility of the judiciary but of the executive
department, and argument as to what that department might do
encroaches upon the separation of their functions."), cert. denied, 484
U.S. 1020 (1988); Turner v. Commonwealth, 364 S.E.2d 483, 487-88
(Va.), cert. denied, 486 U.S. 1017 (1988) (rejecting petitioner's argu-
ment that, under Skipper and Ramos, he should be entitled to present
evidence on parole eligibility). Of course, the Virginia Supreme
Court's decision on direct appeal in this case -- an "especially valu-
able" opinion because it "concern[s] the legal implications of pre-
cisely the same set of facts [and so] is the closest one can get to a
`case on point,'" Wright, 505 U.S. at 305 (O'Connor, J., concurring
in the judgment) -- concluded as well, relying on the long line of Vir-
ginia precedent, that the defendant should not be able to argue parole

                     35
eligibility. O'Dell, 364 S.E.2d at 507. And, from 1988 until Simmons,
the Virginia Supreme Court continued to rely on Ramos in denying
parole-ineligible defendants the right to argue their parole ineligibility
to capital sentencing juries. As the Court elaborated in Mueller v.
Commonwealth, 422 S.E.2d 380, 394 (Va. 1992) (emphasis added),
cert. denied, 507 U.S. 1043 (1993),

          Mueller argues that the trial court violated his due process
          rights by refusing to instruct the jury that, pursuant to Code
          § 53.1-151(B1), he would not be eligible for parole . . . . We
          hold that the trial court did not err in its rulings here. This
          Court has held uniformly and repeatedly that information
          regarding parole eligibility is not relevant for the jury's con-
          sideration. Further, the United States Supreme Court has
          expressly left the determination of this question to the indi-
          vidual states as a matter of state law. California v. Ramos,
          463 U.S. 992, 1013-14 (1983).

Although likewise not necessarily dispositive, the federal appellate
courts' views in 1988 are also "relevant," Stringer, 503 U.S. at 237,
to determining whether Gardner and Skipper compelled the result in
Simmons. The federal circuits were uniform in concluding not only
that Gardner and Skipper did not compel that result, but that Ramos
compelled precisely the opposite -- deference to the States' choices
about whether to inform juries about parole. In Turner v. Bass, 753
F.2d 342, 354 (4th Cir. 1985) (Widener, Hall, Phillips, JJ.) (emphasis
added), rev'd on other grounds sub nom. Turner v. Murray, 476 U.S.
28 (1986), our circuit, for example, considered this issue and agreed
with the Supreme Court of Virginia:

          In arriving at its decision [in Ramos], the Court noted: "[o]ur
          conclusion is not intended to override the contrary judgment
          of state legislatures that capital sentencing juries in their
          state should not be permitted to consider the governor's
          power to commute a sentence.30" In footnote 30 the Court
          stated that "[m]any state courts have held it improper for the
          jury to consider or to be informed -- through argument or
          instruction -- of the possibility of commutation, pardon, or
          parole." [Ramos, 463 U.S. at 1013 & n.30.] While not
          exactly on point, we think Ramos indicates that the Court

                     36
          would decide that while it is constitutionally permissible to
          instruct the jury on the subject of parole, such an instruction
          is not constitutionally required. We so hold.

In doing so, our circuit relied upon a decision of the Fifth Circuit,
O'Bryan v. Estelle, 714 F.2d 365, 389 (5th Cir. 1983), cert. denied,
465 U.S. 1013 (1984), which had understood Ramos as we had:

          [W]e cannot say that an instruction on parole is constitution-
          ally mandated in a capital case. See California v. Ramos,
          [463 U.S. 992] (1983) (instruction informing jurors in capi-
          tal case that governor has power to commute "life sentence
          without possibility of parole" but not informing them of
          equivalent power to commute death sentence not unconstitu-
          tional).

We do not find persuasive O'Dell's argument that Turner v. Bass
and O'Bryan should be disregarded because they were decided before
Skipper. The Skipper footnote addressing due process was merely a
reaffirmation of the Gardner plurality, and it did not in any way draw
into question Ramos. The reasonableness of the Bass and O'Bryan
conclusion (now, under Simmons, held to be wrong) is confirmed by
the fact that both circuits, like Virginia's Supreme Court, continued
with their holdings regarding instructions on parole long after
Skipper. See Peterson v. Murray, 904 F.2d 882, 886-87 (4th Cir.)
(Hall, Sprouse, Wilkinson, JJ.) ("[W]e believe that Ramos left to the
states the decision concerning what, if anything, a jury should be told
about commutation, pardon, and parole." (citing Turner v. Bass)),
cert. denied, 498 U.S. 992 (1990); Knox v. Collins, 928 F.2d 657, 660
(5th Cir. 1991) (rejecting petitioner's claim "that the Constitution
mandates instruction on parole in capital cases" and holding that
"[t]he decision whether to require such an instruction rests entirely
with the state legislature"); cf. United States v. Chandler, 996 F.2d
1073, 1086 (11th Cir. 1993) (holding that "[t]he range of possible sen-
tences [including "the possibility of life without parole"] that [peti-
tioner] might receive in the event the jury did not recommend death
does not fall within th[e] definition [of "mitigating factors as `any
aspect of a defendant's character or record and any of the circum-
stances of the offense.' Lockett v. Ohio . . . ; Skipper v. South
Carolina," and so] the district court was not required to inform the

                    37
jury of the possible sentences [petitioner] might face"), cert. denied,
114 S. Ct. 2724 (1994).

Nor do we believe it could even be contended that the decisions of
the Fourth Circuit, the Fifth Circuit, and of the Virginia Supreme
Court, that Ramos left the desirability of instructions on parole eligi-
bility or ineligibility to the authority of the states, were in any way
"objectively unreasonable." See Stringer, 503 U.S. at 237.

As Butler recognized in holding that Arizona v. Roberson, 486 U.S.
675 (1988), announced a new rule, "[t]hat the outcome in Roberson
was susceptible to debate among reasonable minds is evidenced fur-
ther by the differing positions taken by the judges of the Courts of
Appeals for the Fourth and Seventh Circuits." 494 U.S. at 415.12 Even
more so was "the outcome in [Simmons] . . . susceptible to debate
among reasonable minds," as "evidenced" by the unanimous disagree-
ment with that outcome by the Fourth and Fifth Circuits, and by the
Virginia Supreme Court.

E.

We therefore conclude that the rule in Simmons -- that due process
requires that a capital defendant be allowed to rebut prosecution argu-
ments of future dangerousness with his ineligibility for parole -- was
not compelled by existing precedent, and that the state and federal
judges who held otherwise in 1988 were not objectively unreasonable
in so holding.13 If, as the Court held in Sawyer, Caldwell's limited
exception that states cannot affirmatively provide inaccurate informa-
_________________________________________________________________

12 See also Caspari, 114 S. Ct. at 956 ("Two Federal Courts of Appeals
and several state courts had reached conflicting holdings on the issue.
Because that conflict concerned a `developmen[t] in the law over which
reasonable jurists [could] disagree,' Sawyer v. Smith, 497 U.S. 227, 234
(1990), [ruling in petitioner's favor on habeas would announce a new
rule].").

13 The district court's conclusion in footnote that the precedent in 1988
also dictated the result that the Eighth Amendment required that the jury
be informed of future dangerousness, J.A. at 335, is inexplicable, consid-
ering that such a rule would be new even today. See Simmons, 114 S. Ct.
at 2193 n.4 (plurality); id. at 2199 (Ginsburg, J., concurring); id. at 2200
(O'Connor, J., concurring); cf. id. at 2198-99 (Souter, J., concurring). For
the same reasons that we hold that the precedent in 1988 did not compel
the conclusion that due process required Simmons, we hold that the same
precedent did not compel a conclusion that the Eighth Amendment
required Simmons.

                     38
tion to juries concerning their role in the sentencing process was not,
because of Ramos' seemingly categorical deference to the states on
such matters, compelled, then a fortiori Simmons' more sweeping
exception that states must affirmatively correct, or at least allow the
correction of, pre-existing juror misconceptions concerning state
postsentencing laws and procedures, was, for the same reason, not
compelled either.

It was, at the very least, not unreasonable for jurists to have con-
cluded that the broad deference afforded the states with respect to
informing juries of state law regarding commutation and parole had
not been withdrawn from them by a mere plurality and a single major-
ity footnote, the latter of which treated the due process holding so dis-
missively that three Justices criticized the Court as having
"unnecessarily abandon[ed]" this grounds for decision, Skipper, 476
U.S. at 11 (Powell, J., concurring in the judgment, joined by Burger,
C.J., and Rehnquist, J.). Tellingly, this footnote, which O'Dell now
maintains compelled the result in Simmons, was not even mentioned
in O'Dell's own 151-page federal habeas petition filed in 1992 on his
behalf by two major, nationally-recognized law firms, Hunton & Wil-
liams, and Paul, Weiss, Rifkind, Wharton & Garrison.

As Justice O'Connor reminded in Johnson v. Texas:

          When determining whether a rule is new, we do not ask
          whether it fairly can be discerned from our precedents; we
          do not even ask if most reasonable jurists would have dis-
          cerned it from our precedents. We ask only whether the
          result was dictated by past cases, or whether it is "suscepti-
          ble to debate among reasonable minds."

509 U.S. at 378 (O'Connor, J., dissenting, joined by Blackmun, Ste-
vens, and Souter, JJ.). Considering that every Member of the Supreme
Court of the United States -- the five Members of the Ramos majority
and the four dissenters -- had seemed to expressly approve, as consti-
tutionally permissible, the practice of the several states of forbidding
any argument or instruction to the jury concerning commutation, par-
don, or parole, and considering that that same Court rejected a claim
virtually identical to that which prevailed in Simmons, if Simmons did

                     39
not announce a new rule, then we are at a loss to understand how
Teague has any real meaning at all.

Accordingly, we hold that Simmons announced a new rule under
Teague, and, therefore, that O'Dell cannot avail himself of the rule of
Simmons, unless it falls within "one of the two narrow exceptions to
the nonretroactivity principle." Caspari, 114 S. Ct. at 953.

F.

The first exception applies to those rules that place "`certain kinds
of primary, private individual conduct beyond the power of the crimi-
nal law-making authority to proscribe,'" Teague, 489 U.S. at 307
(quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (opinion
of Harlan, J.)), or "address[ ] a `substantive categorical guarante[e]
accorded by the Constitution,' such as a rule `prohibiting a certain
category of punishment for a class of defendants because of their sta-
tus or offense.'" Saffle, 494 U.S. at 494 (quoting Penry, 492 U.S. at
329, 330). This exception "is clearly inapplicable here," Gilmore, 508
U.S. 345, because the rule announced in Simmons "neither decrimi-
nalize[s] a class of conduct nor prohibit[s] the imposition of capital
punishment on a particular class of persons [because of their status or
offense]." Saffle, 494 U.S. at 495.

The second exception applies to "`watershed rules of criminal pro-
cedure' implicating the fundamental fairness and accuracy of the
criminal procedure." Id. (quoting Teague, 489 U.S. at 311). This
exception "is clearly meant to apply only to a small core of rules
requiring observance of those procedures that . . . are implicit in the
concept of ordered liberty." Graham, 506 U.S. at 478 (internal quota-
tions omitted). "A rule that qualifies under this exception must not
only improve accuracy, but also `"alter our understanding of the
bedrock procedural elements"' essential to the fairness of a proceed-
ing." Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at 311 (quot-
ing Mackey, 401 U.S. at 693)). And, "[b]ecause we operate from the
premise that such procedures would be so central to an accurate deter-
mination of innocence or guilt, . . . it is unlikely that many such com-
ponents of basic due process have yet to emerge." Teague, 489 U.S.
at 313. We do not believe that the rule announced in Simmons is on
par with the rule announced in Gideon v. Wainwright, 372 U.S. 335

                    40
(1963), a rule the Court has "usually cited . . . to illustrate the type
of rule coming within the exception," Saffle, 494 U.S. at 495; see also
Gray, 1996 WL 335339 at *13, and we conclude that it does not come
within the second exception to Teague.

We therefore hold that Simmons announced a new rule of which
O'Dell cannot avail himself.14
_________________________________________________________________

14 Because we hold that Simmons announced a new rule, we do not
address whether the failure to give the Simmons instruction in this case
was harmless error under Brecht v. Abrahamson, 507 U.S. 619 1722
(1993) ("[H]abeas petitioners may obtain plenary review of their consti-
tutional claims, but they are not entitled to habeas relief based on trial
error unless they can establish that it resulted in `actual prejudice,'" i.e.,
whether "the error `had substantial and injurious effect or influence in
determining the jury's verdict.'" (quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946))).

Nevertheless, there are strong indications that even if it had been error,
it would have been harmless under Brecht given the heinousness of the
crime, O'Dell's lengthy and frightening criminal record, and O'Dell's
own testimony from the stand that he would spend the rest of his life
behind bars, J.A. at 2433. Moreover, the court's failure to inform the jury
of parole ineligibility calls into question only the jury's finding of future
dangerousness, leaving the vileness finding untouched, which may be
sufficient to sustain the death penalty under Zant v. Stephens, 462 U.S.
862, 884 (1983) ("[A] death penalty supported by at least one valid
aggravating circumstance need not be set aside . . . simply because
another aggravating circumstance is `invalid' in the sense that it is insuf-
ficient by itself to support the death penalty."). Although the Virginia
Supreme Court did state that "the jury did not base its verdict on the vile-
ness predicate," O'Dell, 364 S.E.2d at 507, it appears to have clearly
erred in saying this, as O'Dell himself appears to recognize. See Petition-
er's Br. at 42-43. The jury verdict expressly stated that, in addition to
finding that O'Dell posed a future danger,

          having unanimously found that [O'Dell's] conduct in commit-
          ting the offense was outrageously wanton, vile or inhuman and
          it involved aggravated battery to the victim beyond the minimum
          necessary to accomplish the act of murder, and having consid-
          ered the evidence in mitigation of the offense, unanimously fix
          his punishment at death.

J.A. at 2506.

                     41
III.

Before the federal district court on habeas, O'Dell raised innumer-
able constitutional claims. J.A. at 281-84. Nine of those claims were
raised for the first time at the state habeas proceeding,15 although, as
the state habeas court expressly found, see J.A. at 285, these claims
had been ripe for presentation on direct appeal. Virginia law bars the
consideration on habeas of trial errors that could be, but were not,
raised on direct appeal. Slayton v. Parrigan, 205 S.E.2d 680 (1974),
cert. denied, 419 U.S. 1108 (1975). Therefore, the federal district
court properly held that these claims were procedurally barred from
review on federal habeas under Wainwright v. Sykes, 433 U.S. 72
(1977), absent cause and prejudice.

A.

The Commonwealth also argues that ten additional claims of
O'Dell's before the federal habeas court are procedurally barred
because the Virginia Supreme Court dismissed as untimely their
appeal from the state habeas proceeding.16 After the state habeas
court dismissed O'Dell's petition, he filed an "Assignments of Error"
with the Virginia Supreme Court. Virginia law, however, requires that
a "Petition for Appeal" be filed instead, in order to appeal from a
denial of the writ of habeas corpus. By the time O'Dell attempted to
correct his error, the three months to file such a petition had passed,
and so the Virginia Supreme Court dismissed his Petition for Appeal
as untimely under Va. S. Ct. Rule 5:17(a)(1).17 J.A. at 216. That dis-
_________________________________________________________________

15 These claims were denominated Id, IIh, IV, V, VI, X, XI, XVIII, and
XXII in the federal district court. J.A. at 286.

16 These claims were denominated Ia, Ibi, Ibii, Ibiv, Ic, Ie, Ig, XVII,
XX, and XXIII in the federal district court. J.A. at 285. Additionally,
claims Id, V, VI, X, XI, XVIII, and XXII were also dismissed by the Vir-
ginia Supreme Court as untimely on appeal from the state habeas pro-
ceeding, but, because they were procedurally barred in any event under
Slayton, see supra, we do not consider them further.

17 On March 6, 1991, the deputy chief clerk of the Virginia Supreme
Court and an assistant state attorney general informed O'Dell that he
should have filed a petition for appeal rather than assignments of error.
J.A. at 287 n.3. O'Dell claims that the state assistant attorney general

                     42
missal is sufficient to bar federal habeas review of those claims,18 so
long as the dismissal rested upon "adequate and independent state
grounds." Wainright, 433 U.S. at 81; see also Murdock v. Memphis,
87 U.S. (20 Wall.) 590, 636 (1875).
_________________________________________________________________

then told him over the telephone that he had "no objection" to O'Dell try-
ing to "supplement" his filing, and that the Commonwealth would not
oppose that supplementation. Id. Regardless of whether such a phone
conversation actually took place, the Commonwealth did in fact oppose
the motion to amend when it was filed on March 8, and the Virginia
Supreme Court denied that motion, as was its prerogative.

18 That the full text of the Virginia Supreme Court opinion was but one
sentence -- "Finding that the appeal was not perfected in the manner
provided by law, the Court rejects the petition for appeal in the above-
styled case. Rule 5:17(a)(1)," J.A. at 216 -- is of course of no moment.
"[A] state court that wishes to rely on a procedural bar rule in a one-line
pro forma order easily can write that `relief is denied for reasons of pro-
cedural default.'" Harris v. Reed, 489 U.S. 255, 265 n.12 (1989).

                     43
Volume 2 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH ROGER O'DELL, III,
Petitioner-Appellee,

v.

J. D. NETHERLAND, Warden,
Mecklenburg Correctional Center;
RONALD J. ANGELONE, Director,
                                                     No. 94-4013
Virginia Department of Corrections;
JAMES S. GILMORE, III, Attorney
General of the Commonwealth of
Virginia; COMMONWEALTH OF
VIRGINIA,
Respondents-Appellants.

JOSEPH ROGER O'DELL, III,
Petitioner-Appellant,

v.

J. D. NETHERLAND, Warden,
Mecklenburg Correctional Center;
RONALD J. ANGELONE, Director,
                                                     No. 94-4014
Virginia Department of Corrections;
JAMES S. GILMORE, III, Attorney
General of the Commonwealth of
Virginia; COMMONWEALTH OF
VIRGINIA,
Respondents-Appellees.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-92-480-R)
Argued: December 5, 1995

Decided: September 10, 1996

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,
HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges.

_________________________________________________________________

Reversed in part and affirmed in part by published opinion. Judge
Luttig wrote the opinion, in which Chief Judge Wilkinson and Judges
Russell, Widener, Wilkins, Niemeyer, and Williams joined. Judge
Ervin wrote an opinion concurring in part and dissenting in part, in
which Judges Hall, Murnaghan, Hamilton, Michael, and Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Eugene Paul Murphy, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellants. Robert S. Smith, PAUL, WEISS, RIFKIND, WHARTON
& GARRISON, New York, New York, for Appellee. ON BRIEF:
James S. Gilmore, III, Attorney General of Virginia, Linwood T.
Wells, Jr., Assistant Attorney General, OFFICE OF THE ATTOR-
NEY GENERAL, Richmond, Virginia, for Appellants. Jeffrey M.
Eilender, PAUL, WEISS, RIFKIND, WHARTON & GARRISON,
New York, New York; Patricia M. Schwarzschild, HUNTON & WIL-
LIAMS, Richmond, Virginia; Michele J. Brace, Donald Lee, VIR-
GINIA CAPITAL REPRESENTATION RESOURCE CENTER,
Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

1.

The federal habeas court, relying on James v. Kentucky, 466 U.S.
341 (1984), and Ford v. Georgia, 498 U.S. 411 (1991), held that,

                   46
because the distinction between assignments of error and petitions for
appeal was not "firmly established and regularly followed" in capital
cases, the Virginia Supreme Court's determination that these claims
were procedurally barred as untimely was not a state ground "ade-
quate" to bar federal habeas review. J.A. at 292 (quoting James, 466
U.S. at 348-49). In so holding, the district court did not conclude, and
O'Dell has never maintained, that this distinction has not been "regu-
larly followed";19 rather, the district court determined that the distinc-
tion failed the first requirement of James, that it be "firmly
established." As a general matter, whenever a procedural rule is
derived from state statutes and supreme court rules, as this one is, the
rule is necessarily "firmly established." 20 The district court in this
case, however, concluded that the many Virginia"rules are ambigu-
ous on the procedure for appeals from the denial of state habeas deci-
sions," J.A. at 291, and therefore that the distinction between petitions
for appeal and assignments of error was not "firmly established."
_________________________________________________________________

19 The Commonwealth argues, and O'Dell presents no evidence to the
contrary, that "Virginia clearly and consistently requires the filing of a
petition for appeal on any appeal from a judgment of the habeas corpus
proceeding, regardless of whether the habeas case involves the death
penalty." Respondent's Reply Br. at 32. See, e.g., Yeatts v. Murray, 455
S.E.2d 18, 20 (Va. 1995) ("award[ing] Yeatts an appeal limited to [cer-
tain issues]" following circuit court's denial of petitioner's writ of
habeas corpus); id. at 21-22 (refusing to consider a claim raised in appel-
lant's brief because it failed to comply with Rule 5:17(c) governing peti-
tions for appeal); Epperly v. Booker, 366 S.E.2d 62, 63 (Va. 1988)
("[T]he defendant filed a petition for a writ of habeas corpus in the court
below, the court denied the petition, and we granted the petitioner an
appeal." (emphasis added)); Peterson v. Bass, 343 S.E.2d 475, 480 (Va.
App. 1986) (Barrow, J., dissenting) ("Peterson has taken all steps neces-
sary to entitle him to have his petition for appeal considered on its merits
by the Supreme Court. He filed a timely notice of appeal to the Supreme
Court and subsequently filed a timely petition for appeal [from his
habeas petition attacking his capital conviction]."); compare Rogers v.
Commonwealth, 410 S.E.2d 621, 622-23 (Va. 1991) (considering, on
direct capital appeal, defendant's assignments of error).

20 Although unambiguous statutes or court rules are always "firmly
established," new procedural rules created after the time they had to be
obeyed, see Ford, 498 U.S. at 424-25, and procedural distinctions regu-
larly ignored by state courts, see James, 466 U.S. at 346-47, are by defi-
nition not.

                     47
On the face of those rules, however, we can discern no ambiguity
whatsoever. Va. S. Ct. Rule 5:17(a)(1) (emphasis added) requires that
a "petition for appeal" be filed with the clerk "[i]n every case in which
the appellate jurisdiction of [the Virginia Supreme Court] is invoked
. . . ." Here, the Virginia Supreme Court's appellate jurisdiction was
invoked, and O'Dell did not file a petition for appeal.

The Virginia Supreme Court had appellate jurisdiction over this
appeal under Va. Code § 17-116.05:1(B) (emphasis added), which
provides that,

          [i]n accordance with other applicable provisions of law,
          appeals lie directly to the Supreme Court from a conviction
          in which a sentence of death is imposed, from a final deci-
          sion, judgment or order of a circuit court involving a petition
          for a writ of habeas corpus, . . . and from[other proceedings
          not relevant here].

Contrary to the district court's conclusion, J.A. at 290, this provision
does not at all "indicate[ ] that the same procedural rules that apply
to appeals of convictions in death penalty cases also apply to appeals
from decisions of circuit courts involving habeas corpus petitions."
Rather, the section is a jurisdictional provision; the title of the section
even reads, as it pertains to the above-quoted subsection, "[C]ases
over which Court of Appeals does not have jurisdiction."21 The provi-
_________________________________________________________________

21 Prior to 1985, when this statute was amended to provide that appeals
"involving" habeas corpus "lie directly" to the Supreme Court, such
appeals were in the exclusive jurisdiction of the Court of Appeals.
Titcomb v. Wyant, 323 S.E.2d 800 (Va. 1984). Even after Titcomb, how-
ever, the Supreme Court retained jurisdiction for habeas appeals in capi-
tal cases, because "it would be inconsistent with the legislative design
. . . to conclude that [the Court of Appeals] lack[ed] jurisdiction to hear
direct appeals [in capital cases], but that[it] possess[ed] . . . jurisdiction
[over habeas challenges to capital convictions]." Peterson, 343 S.E.2d at
478.

That the 1985 amendment was simply an alteration in jurisdiction over
all habeas appeals has been recognized by the Virginia Courts:

          It is clear from the 1985 amendment to Code § 17-116.05:1(B)
          that effective July 1, 1985, the General Assembly terminated the

                     48
sion does not in any way purport to control the form of the appeal for
the several categories of cases that are to be appealed directly to the
Virginia Supreme Court rather than to the intermediate Court of
Appeals. In fact, it expressly provides that those appeals lie "in accor-
dance with other applicable provisions of law." It would be odd, then,
to read this section as altering the general rule that "[i]n every case
in which the appellate jurisdiction of [the Supreme] Court is invoked,
a petition for appeal must be filed." Va. S. Ct. Rule 5:17(a) (emphasis
added).

Virginia does require the filing of assignments of error rather than
a petition for appeal in its "Special Rule Applicable to Cases in
Which Sentence of Death Has Been Imposed":

          (a) Upon receipt of a record pursuant to § 17-110.1 B, the
          clerk of this Court shall notify in writing counsel . . . . The
          case shall thereupon stand matured as if an appeal had been
          awarded to review the conviction and the sentence of
          death . . . .

          (b) Within 10 days after the Filing Date, counsel for the
          appellant shall file with the clerk . . . assignments of error
          upon which he intends to rely for reversal of the conviction
          or review of the sentence of death.

Va. S. Ct. Rule 5:22 (emphasis added). It is plain, however, that this
provision relates only to the direct review of death penalty sentences.
That Rule 5:22 is confined to capital cases on direct review is con-
firmed on a number of grounds. First, the very title of the rule is "Spe-
cial Rule Applicable to Cases in Which Sentence of Death Has Been
Imposed." A sentence of death is imposed at the end of the sentencing
_________________________________________________________________

          jurisdiction of [Virginia's intermediate appellate courts] to hear
          and determine appeals from a final decision, judgment or order
          of a circuit court involving a petition for a writ of habeas corpus.
          . . . [T]he clear legislative intent expressed in the 1985 amend-
          ment [was] that habeas corpus cases on appeal from the circuit
          court go directly to the Supreme Court.

White v. Garraghty, 341 S.E.2d 402, 405-06 (Va. App. 1986); see also
Peterson, 343 S.E.2d at 477 n.4.

                     49
phase of the trial; in no manner is the sentence imposed by a subse-
quent denial of the writ of habeas corpus. This distinction is unmis-
takable in light of section 17-116.05:1, supra, which provides for
direct review by the Supreme Court of both"conviction[s] in which
a sentence of death is imposed "and "final decision[s], judgment[s] or
order[s] of a circuit court involving a petition for a writ of habeas cor-
pus." If the two were identical, the provision of direct Supreme Court
jurisdiction for each would be redundant. Additionally, the assign-
ments of error referenced in Rule 5:22 are those "upon which [coun-
sel] intends to rely for reversal of the conviction or review of the
sentence of death." Neither remedy is available upon appeal from a
denial of a writ of habeas corpus; the denial of the writ can be either
affirmed or reversed, but the underlying conviction and sentence are
not being reviewed (they are only reviewable on direct appeal). Cf.
Coleman v. Thompson, 501 U.S. 722, 730 (1991) ("When a federal
district court reviews a state prisoner's habeas corpus petition pursu-
ant to 28 U.S.C. § 2254, it must decide whether the petitioner is `in
custody in violation of the Constitution or laws or treaties of the
United States.' The court does not review a judgment, but the lawful-
ness of the petitioner's custody simpliciter." (emphasis added)).

Moreover, Rule 5:22 on its own terms is triggered by receipt of a
record pursuant to Va. Code § 17-110.1(B), a section unquestionably
addressing direct review of death sentences:

          § 17-110.1. Review of death sentence. --

          A. A sentence of death, upon the judgment thereon
          becoming final in the circuit court, shall be reviewed on the
          record by the Supreme Court.

          B. The proceeding in the circuit court shall be tran-
          scribed as expeditiously as possible, and the transcript filed
          forthwith . . . and transmit[ted] . . . to the Supreme Court.

          C. In addition to consideration of any errors in the trial
          enumerated by appeal, the court shall consider and deter-
          mine:

                     50
          1. Whether the sentence of death was imposed
          under the influence of passion, prejudice or any
          other arbitrary factor; and

          2. Whether the sentence of death is excessive or
          disproportionate to the penalty imposed in similar
          cases, considering both the crime and the defen-
          dant.

          D. In addition to the review and correction of errors in
          the trial of the case, with respect to review of the sentence
          of death, the court may:

          1. Affirm the sentence of death;

          2. Commute the sentence of death to imprison-
          ment for life; or

          3. Remand to the trial court for a new sentencing
          proceeding.

          ...

          F. Sentence review shall be in addition to appeals, if
          taken, and review and appeal may be consolidated.

That this section addresses only direct review is self-evident. See
Payne v. Commonwealth, 357 S.E.2d 500, 508 (Va.) ("In death pen-
alty cases, . . . a defendant is afforded a direct, full review as a matter
of right. Code § 17-110.1." (emphasis added)), cert. denied, 484 U.S.
933 (1987). As part A provides, the section is operative only "upon
the judgment [of a sentence of death] becoming final in the circuit
court." A sentence of death does not become final when a subsequent
court denies a writ of habeas corpus; it becomes final upon the entry
of the judgment by the trial court. Likewise, the proportionality
review and independent examination of the sentence for arbitrariness
provided for in part C occur on direct review, not habeas. And the
remedies provided in part D -- "affirm[ing] the sentence of death,"
"commut[ing] the sentence of death," and"remand[ing] to the trial

                     51
court" -- are not available at all to a court reviewing a denial of
habeas; they are possible only on direct review.

Finally, part F makes absolutely clear that the entire section is
addressed only to direct review of the death sentence itself (as even
the title of the section sets forth), not even to the underlying convic-
tion for capital murder. That underlying conviction may be, but, under
this section need not necessarily be ("if taken"), consolidated with the
direct review of the death sentence. Indeed, under Rule 5:22, that con-
solidation is automatic: "The case shall thereupon stand matured as if
an appeal had been awarded to review the conviction and the sentence
of death . . . ."

Thus, the Virginia statutory scheme is not at all ambiguous. As a
general rule, a petition for appeal must be filed in every case for
which review is sought by the Virginia Supreme Court. For direct
review of death sentences and their accompanying capital convic-
tions, Rule 5:22 (itself, denominated a "special rule") creates an
exception, providing that assignments of error should instead be filed.
But nowhere in that exception, or in section 17-110.1(B) to which it
refers, is there any possible reference to appeals from a denial of a
writ of habeas corpus. The only relevant reference to denials of writs
of habeas corpus is in section 17-116.05:1, which provides merely
that jurisdiction shall lie in the Supreme Court. And that section
makes no reference to the form those appeals should take; so the gen-
eral rule requiring a petition of appeal necessarily obtains.

We recognize that Justice Blackmun, joined by Justices Stevens
and O'Connor, questioned whether the Virginia Supreme Court's dis-
missal of these claims as untimely constituted a state ground "ade-
quate" to bar federal habeas review. See O'Dell, 502 U.S. at 997-98
(Blackmun, J.). Justice Blackmun commented that the ground "may"
not be "adequate" under James and Ford because of the "ambiguity
of the Virginia statute." We believe, however, that upon closer inspec-
tion, there is no ambiguity at all.22 Therefore, we hold that the Vir-
_________________________________________________________________

22 Because these procedural rules are expressly set out in unambiguous
state statutes and supreme court rules, and because in Virginia they have
been regularly followed, see supra note 19, they are qualitatively differ-

                     52
ginia Supreme Court's dismissal of O'Dell's appeal from the denial
of the writ of habeas corpus as untimely was a state ground "ade-
quate" to bar federal habeas review.

2.

Although the district court did not agree, J.A. at 288, Justice Black-
mun also commented that the Virginia Supreme Court's rejection
"may" not have been "independent," in that it "fairly appears to rest
primarily on federal law, or to be interwoven with the federal law,"
Michigan v. Long, 463 U.S. 1032, 1040 (1983), because, as in Ake v.
Oklahoma, 470 U.S. 68, 75 (1985), "the State has made application
of the procedural bar depend on an antecedent ruling on federal law."
Justice Blackmun observed,

          the Virginia Supreme Court's rejection may not be based on
          an independent state ground because Tharp v.
          Commonwealth, 175 S.E.2d 277 (Va. 1970), requires the
          Virginia Supreme Court to consider whether a constitutional
          right was abridged before denying an extension of time for
          filing a petition for appeal.

O'Dell, 502 U.S. at 998.

Justice Blackmun then noted that this case "may be distinguish-
able," id. at 620 n.5, from Coleman , which rejected a nearly identical
_________________________________________________________________

ent from the rule at issue in James. In James, the distinction between jury
"instructions" and "admonitions" was "not always clear or closely hewn
to," as evidenced by the fact that the Kentucky Supreme Court had "rec-
ognized that the content of admonitions and instructions can overlap,"
had "acknowledged that `sometimes matters more appropriately the sub-
ject of admonition are included with or as a part of the instructions,'" and
had used the terms interchangeably for a number of years (as had the trial
courts). 466 U.S. at 346-47. Likewise, because Virginia's rules existed
long before the commencement of O'Dell's state habeas proceeding,
they are nothing like the procedural rule that Georgia had applied retro-
actively in Ford to a proceeding that had been completed long before the
creation of the rule.

                    53
claim, because here the Virginia Supreme Court was considering an
untimely petition for appeal rather than the untimely notice of appeal
at issue in Coleman. See also J.A. at 292 n.7 (federal district court
distinguishing Coleman on same ground). But this possible distinction
is refuted by the express language of Coleman . As Justice O'Connor
wrote for the Court,

          Ake was a direct review case. We have never applied its rule
          regarding independent state grounds in federal habeas. But
          even if Ake applies here, it does Coleman no good because
          the Virginia Supreme Court relied on an independent state
          procedural rule.

          ...

          We are not convinced that Tharp stands for the rule that
          Coleman believes it does. Coleman reads that case as estab-
          lishing a practice in the Virginia Supreme Court of examin-
          ing the merits of all underlying constitutional claims before
          denying a petition for appeal or writ of error as time barred.
          A more natural reading is that the Virginia Supreme Court
          will only grant an extension of time if the denial itself would
          abridge a constitutional right. That is, the Virginia Supreme
          Court will extend its time requirement only in those cases
          in which the petitioner has a constitutional right to have the
          appeal heard.

Coleman, 501 U.S. at 741-42 (first and second emphases added).23

We agree that the rule of Ake concerning the state procedural rules
and underlying federal claims does not apply in the habeas context,
and, regardless, because we read Tharp the same way that the Court
in Coleman did, we hold that the Virginia Supreme Court's applica-
_________________________________________________________________

23 The Court in Coleman did comment that the Virginia Supreme Court
had there not applied Tharp because that case concerns only petitions for
appeal, as contrasted to the "purely ministerial" notice of appeal at issue
in Coleman -- but it did so only as an alternative holding, following the
aforementioned analysis of Tharp and the qualifying phrase, "[e]ven if
we accept Coleman's reading of Tharp." Id.

                    54
tion of Va. S. Ct. Rule 5:17(a)(1) was also an independent state
ground sufficient to bar federal habeas review.

3.

Because the Virginia Supreme Court's application of Rule
5:17(a)(1) was an "adequate and independent state ground," federal
habeas review of O'Dell's defaulted claims, which are meritless in
any event,24 is barred absent cause and prejudice. That the default was
_________________________________________________________________

24 The district court, because it found that Rule 5:17(a)(1) was not an
adequate and independent state ground under James, proceeded to rule
against O'Dell on the merits of these claims. Principally, the claims were
that O'Dell was not competent to waive his right to counsel, that, at a
minimum, his competency was never appropriately determined, and that
even if he was competent, his waiver of the right to counsel was not vol-
untary, knowing, and intelligent. Although it should not have reached the
claims, on the merits, the district court correctly rejected them.

First, the standard for competency to waive the right to counsel is
whether the defendant has "sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding." Godinez v.
Moran, 509 U.S. 389, 396 (1993). After examining O'Dell, Dr. Kreider,
the court-appointed psychiatrist, questioned the reliability of an earlier
diagnosis of schizophrenia, J.A. at 2666, and concluded that O'Dell was
competent "to make a voluntary and intelligent decision to waive his
right to counsel and prepare his own defense," J.A. at 312, an assessment
with which both O'Dell's attorney and the trial court agreed. J.A. at
2511, 2709, 2712. Moreover, because Dr. Kreider was familiar with the
standard for finding a defendant competent to stand trial, J.A. at 313,
2642-45, 2682-83, and because that standard is identical to the standard
for waiving the right to counsel, Godinez, 509 U.S. at 397, Dr. Kreider's
determination was more than adequate, as both the state and federal
habeas courts found, J.A. at 2760, 2776-77, 313-14.

Second, O'Dell claims that his competency was never appropriately
determined because Dr. Kreider is a "therapeutic psychiatrist" and not a
"forensic psychiatrist." Although O'Dell cites Ake for the proposition
that "[w]hen the mental state of a defendant is at issue, due process
requires that a defendant be provided with a qualified expert psychiatrist
to assist with his defense," Petitioner's Br. at 61, he misreads Ake to
establish a general due process right to psychiatric assistance where none
exists. In Ake, the Court held only that,

                    55
only procedural, does nothing to insulate the claims from this bar. As
Justice O'Connor explained for the Court in Coleman,
_________________________________________________________________

          when a defendant demonstrates to the trial judge that his sanity
          at the time of the offense is to be a significant factor at trial, the
          State must, at a minimum, assure the defendant access to a com-
          petent psychiatrist who will conduct an appropriate examination
          and assist in . . . the defense.

470 U.S. at 83 (emphasis added). Ake thus says nothing about determin-
ing "competency" to stand trial or waive counsel; it deals only with a
defendant's "sanity" at "the time of the offense," as the state habeas court
properly held, J.A. at 2776. And in Godinez, the Court noted that a court
is not

          required to make a competency determination in every case in
          which a defendant seeks to plead guilty or to waive his right to
          counsel. As in any criminal case, a competency determination is
          necessary only when a court has reason to doubt the defendant's
          competence.

Godinez, 509 U.S. at 401 n.13.

Regardless, Dr. Kreider was more than qualified to make the compe-
tency determination; he has an M.D. from the University of Chicago
School of Medicine, has completed a psychiatric residency at the Phila-
delphia Naval Hospital, and has served as a psychiatrist in the Navy and
in private practice from 1965 to the present. J.A. at 2640-42. Both the
state and federal habeas courts found Dr. Kreider fully qualified to make
the competency determination.

Finally, O'Dell claims that his conviction must be vacated because he
did not waive his right to counsel voluntarily, knowingly, and intelli-
gently. O'Dell claims that the district court's refusal to replace defense
counsel, with whom O'Dell had a confrontational and distrustful rela-
tionship, left O'Dell "no choice" but to dismiss counsel and proceed pro
se. But "[t]he determination of whether or not the motion for substitution
of counsel should be granted is within the discretion of the trial court."
United States v. Gallop, 838 F.2d 105, 108 (4th Cir.), cert. denied, 487
U.S. 1211 (1988). The trial judge was in a far better position than a fed-
eral habeas court to assess the relationship between O'Dell and his attor-
ney. As the trial court stated on the record,

          [f]rom everything I've seen, since Mr. Ray was appointed in this
          case, he's done everything in his power to get those material
          things that should be heard before the Court for a hearing, and

                     56
          we [have repeatedly] emphasized the important interests
          served by state procedural rules at every stage of the judicial
          process and the harm to the States that results when federal
          courts ignore these rules: " . . . `Each State's complement of
          procedural rules . . . channel[s], to the extent possible, the
          resolution of various types of questions to the stage of judi-
          cial process at which they can be resolved most fairly and
          efficiently.'"

501 U.S. at 749 (quoting Murray v. Carrier, 477 U.S. 478, 490-91
(1986) (quoting Reed v. Ross, 468 U.S. 1, 10 (1984))). Nor does the
fact that O'Dell's failure to timely file the required petition for appeal
was almost certainly unintentional insulate him from the conse-
quences of that failure:
_________________________________________________________________

          I've absolutely no evidence whatsoever that this man hasn't done
          an outstanding job for you at this point or that there is any credi-
          bility whatsoever in the allegations which you have made with
          respect to him. None whatsoever.

J.A. at 319; see also J.A. at 3008. Although his opinion on Ray varied,
at times, O'Dell also shared this assessment of Ray's competency. J.A.
at 435, 2513, 3008; Tr. 9/8/86 Vol. 53, 201-02. In any event, the trial
court found that O'Dell was receiving adequate counsel and accordingly
refused to substitute counsel. And, "once the trial court has appropriately
determined that a substitution of counsel is not warranted, the court can
insist that the defendant choose between continuing representation by his
existing counsel and appearing pro se." Gallop, 838 F.2d at 109.

It also appears that O'Dell's waiver was knowingly and intelligently
made. The trial court repeatedly warned O'Dell of the dangers of pro-
ceeding pro se, O'Dell was repeatedly asked if he understood what he
was doing, and the court even allowed him to change his mind several
times. J.A. at 318-19, 3007-08, 3011-12, 3016, 3021-22, 3332-33, 3340.
If there was any problem in the attorney-client relationship, it was likely
caused by O'Dell. As the federal habeas court concluded, "O'Dell's dis-
trust of Ray was not based on objective facts; it was based on pure specu-
lation." J.A. at 320.

And, an independent and thorough examination of the record reveals
that O'Dell, who was "very intelligent," had a college equivalency edu-
cation, and "exhibit[ed] tremendous [courtroom] skills," J.A. at 3011,
2406, 3333, defended himself far more ably than many practicing attor-
neys could have done.

                    57
          By filing late [petitioner] defaulted his entire state collateral
          appeal. This no doubt an inadvertent error, and[Virginia]
          concedes that [petitioner] did not "understandingly and
          knowingly" forgo the privilege of state collateral appeal.
          . . . [Nonetheless] federal habeas review of the claims is
          barred [absent cause and prejudice].

Id. at 749-50.

B.

Having concluded that O'Dell procedurally defaulted nineteen of
his claims (the nine under Slayton and the ten under Rule 5:17(a)(1)),
we now address whether the federal habeas court could nevertheless
consider those claims on the merits. As the Court held in Coleman,

          [i]n all cases in which a state prisoner has defaulted his fed-
          eral claims in state court pursuant to an independent and
          adequate state procedural rule, federal habeas review of the
          claims is barred unless the prisoner can demonstrate cause
          for the default and actual prejudice as a result of the alleged
          violation of federal law, or demonstrate that failure to con-
          sider the claims will result in a fundamental miscarriage of
          justice.

501 U.S. at 750.

On appeal, O'Dell does not even attempt to demonstrate cause and
prejudice; instead, he argues that failure to consider his defaulted
claims will result in a "fundamental miscarriage of justice" because
he has presented new evidence of "actual innocence." O'Dell's claim
"of `actual innocence' is not itself a constitutional claim, but instead
a gateway through which a habeas petitioner must pass to have his
otherwise barred constitutional claim considered on the merits."
Herrera v. Collins, 506 U.S. 390, 404 (1993).25
_________________________________________________________________

25 Although O'Dell asserts that this new evidence is enough to meet the
"extraordinarily high" threshold of a freestanding constitutional claim of
actual innocence, Herrera, 506 U.S. at 417, he devotes only one sentence

                     58
Last Term, the Supreme Court held that the proper test for whether
a habeas petitioner has established that his case is "extraordinary"
enough to fall into that "narrow class of cases," which "implicat[e] a
fundamental miscarriage of justice," McCleskey v. Zant, 499 U.S.
467, 494 (1991), is whether that petitioner has shown that "a constitu-
tional violation has probably resulted in the conviction of one who is
actually innocent." Schlup v. Delo, 115 S. Ct. 851, 867 (1995) (quot-
ing Murray v. Carrier, 477 U.S. 478, 496 (1986)) (emphasis added).26
Thus, in order to have his procedurally defaulted claim reviewed
nonetheless on federal habeas, O'Dell must show that "it is more
_________________________________________________________________

of his voluminous briefing to this issue. See Petitioner's Br. at 52.
Assuming arguendo that such a claim is even possible, but see Herrera,
506 U.S. at 416-17, we agree with the district court that O'Dell did not
come even close to making such a "truly persuasive demonstration." J.A.
at 297.

26 The Commonwealth argues that a claim of actual innocence cannot
succeed unless the petitioner demonstrates that "but for a constitutional
violation" his actual innocence would have been established. Respon-
dent's Reply Br. at 19. Because none of the procedurally barred constitu-
tional claims prevented the jury from hearing the DNA evidence or any
of the other evidence O'Dell claims proves his innocence, the Common-
wealth maintains that they cannot be reviewed regardless of the new evi-
dence.

Prior to Schlup, our circuit did require petitioners to link their exculpa-
tory evidence to a specific constitutional error that prevented the jury
from adequately considering the evidence. See Spencer v. Murray, 18
F.3d 229, 236 (4th Cir. 1994). Spencer, however, rested on Sawyer,
which was rejected by Schlup for claims of actual innocence of the crime
itself. Schlup makes no mention of a "but for" requirement, but it does
note in dictum that an actual innocence claim that "accompanies" an "as-
sertion of constitutional error at trial," is reviewable. Schlup, 115 S. Ct.
at 861. Although the plurality in Schlup did not use the term "but for,"
neither did the Court expressly abandon it. And, the Court continued to
rely on Carrier and McCleskey, both of which require that a constitu-
tional violation "probably" "result" in (Carrier) or "cause" (McCleskey)
the conviction of one actually innocent. See id. at 867. Because we con-
clude that, regardless, O'Dell has not presented sufficient evidence to
demonstrate actual innocence, we need not reach whether a "but for"
requirement remains after Schlup.

                     59
likely than not that no reasonable juror would have convicted him in
light of the new evidence."27Id.

The new evidence that O'Dell proffers as support for his claim of
actual innocence is a recently conducted DNA test of blood found on
O'Dell's clothing. In his statement accompanying the denial of
certiorari on direct review of the state habeas denial, Justice Black-
mun expressed the view that "there are serious questions as to
whether O'Dell committed the crime" in light of this DNA evidence.
O'Dell, 502 U.S. at 998 (Blackmun, J.). Because of these concerns
detailed in Justice Blackmun's statement respecting denial of
certiorari, J.A. at 300, the federal district court conducted a full evi-
dentiary hearing on the DNA evidence. At that hearing, O'Dell pres-
ented the results of DNA tests performed on his blood-soaked
clothing some five years after the crime, in an effort to refute the evi-
dence at his original trial that the blood stains were consistent with
Helen Schartner's blood but not with his own.

1.

At O'Dell's original trial, the Commonwealth's expert Jacqueline
Emrich testified at length about the numerous tests she performed
upon the various relevant blood stains.28 In addition to testing for
_________________________________________________________________

27 Even if petitioner makes this showing, it may still be within the
court's discretion to decline to review his procedurally defaulted claims.
As Justice O'Connor observed in Schlup, "the Court d[id] not, and need
not, decide whether the fundamental miscarriage of justice exception is
a discretionary remedy." 115 S. Ct. at 870 (O'Connor, J., concurring).
And, of course, under Marks, Justice O'Connor's reservation of this
issue causes it to necessarily "be an accurate description of what the
Court . . . holds, since the narrower ground taken by one of the Justices
comprising a five-Justice majority becomes the law." Schlup, 115 S. Ct.
at 875 n.1 (Scalia, J., dissenting).

28 O'Dell now attacks Emrich as a "neophyte," claiming that her testi-
mony should be discounted. However, it is not clear on the record that
O'Dell challenged her qualifications at trial, J.A. at 1827, and regardless,
the Virginia Supreme Court expressly found that "the trial court did not
err in admitting in evidence the results of the electrophoretic tests,"
O'Dell, 364 S.E.2d at 504. The state habeas court heard testimony that

                     60
standard ABO blood type, Emrich tested for the following ten
enzymes: EsD, PGM, PepA, GLO, EAP, AK, ADA, GC, Tf, and Hp.
J.A. at 1851. Ms. Emrich tested blood stains on O'Dell's blue jacket,
and found them consistent with Helen Schartner's blood and inconsis-
tent with O'Dell's. J.A. at 1857. She likewise tested three separate
stains on O'Dell's checkered shirt, and found them all consistent with
Schartner's blood but not O'Dell's. J.A. at 1859-60. And she tested
two stains on O'Dell's tan jacket, finding them both consistent with
Schartner's blood but not O'Dell's. J.A. at 1861. Additionally, Ms.
Emrich tested O'Dell's jeans; most of Helen Schartner's torn
clothing; a sardine can; a red cloth; and the right front seat back, the
right seat back, the seat cover, the left seat back, and the right rear
floormat of O'Dell's car -- all of which revealed blood stains consis-
tent with Helen Schartner's blood but not with O'Dell's. J.A. at 1862-
75.

Helen Schartner had type O blood; O'Dell has type A. J.A. at 1850,
1852. Five of the their enzyme markers were the same, and five were
different. J.A. at 1853-55. Although not all ten enzymes types were
identifiable from every single stain, each stain mentioned above
proved to be type O blood and matched Helen Schartner's blood (in
a way inconsistent with O'Dell's) for every single identifiable
enzyme. In addition, Ms. Emrich also found one other blood stain in
O'Dell's car that was different from both Schartner's and O'Dell's
blood. J.A. at 1871.

2.

Five years after the trial, O'Dell requested permission to have
DNA testing performed on the evidence that was introduced at trial,
_________________________________________________________________

Ms. Emrich's "work has always been outstanding," J.A. at 2752, and
found that "the Supreme Court of Virginia has already ruled that the
serological evidence produced at trial was competent and properly admit-
ted into evidence and considered by the jury. It is not the function of the
writ of habeas corpus to undertake to serve as an appellate court over
the decision reached by the Supreme Court," J.A. at 2777-78 (emphasis
added). Likewise, we, too, on federal habeas, are bound by the Virginia
Supreme Court's finding.

                    61
testing which was not commonly available when he was tried in 1986.
The Commonwealth consented, and O'Dell proposed that the evi-
dence be sent to LifeCodes laboratory. The Commonwealth again
consented. J.A. at 2895. LifeCodes was only able to test the shirt and
the blue jacket, because the blood samples on the remaining items had
deteriorated too much in the five years to be of use. See Petitioner's
Reply Memorandum in Support of Motion to Supplement Oral Argu-
ment at 3 & Ex. A. The LifeCodes Report concluded that the blood
stain on the shirt "can be excluded as having a common origin" with
either Helen Schartner's or O'Dell's blood, but that the blood on the
blue jacket "matched the DNA-PRINT pattern from the blood of
Helen Schartner." J.A. at 2990 (emphasis added).

Before the state habeas court, and again before the federal habeas
court, O'Dell presented expert testimony embracing the first Life-
Codes conclusion and attacking the second. Specifically, his experts
testified that, based upon their own evaluation of the LifeCodes data,
the variations between the blood on the blue jacket and Schartner's
blood exceeded LifeCodes' own match criterion of 1.8%, and so the
jacket should be considered "inconclusive" rather than a "match." J.A.
at 2602, 2860, 2871.

The Commonwealth's experts agreed that the DNA tests proved
that the blood on O'Dell's shirt came from neither Schartner nor
O'Dell, but they testified that the LifeCodes data demonstrate that the
blood on the blue jacket matched Helen Schartner's blood, for two
reasons. First, as O'Dell's experts were forced to largely concede,
J.A. at 2869-71, the DNA patterns on the blue jacket fell well within
the state laboratory's and the FBI's match criterion of 2.5%. J.A. at
2728, 2731, 2802, 2808, 2812-13, 2838. And second, as O'Dell's
experts again had to concede, J.A. at 2871-72, "band shifting" and
"partial degradation," had occurred in the samples and could account
for the differentials, J.A. at 2804, 2821, 2839-40, 2990 -- which is
why LifeCodes performed further tests and ultimately concluded the
blue jacket was a "match," J.A. at 2732-33, 2738-39, 2840, 2891,
2990.

O'Dell's experts, in turn, had two responses. First, under the stan-
dards of the National Research Council -- described by the Common-
wealth's expert as a committee issuing "recommendations," not

                    62
"accepted by the scientific community generally," and currently under
revision because "over 300 distinguished scientists" petitioned for
their modification due to inaccuracies, J.A. at 2827-30 -- "[e]ach lab-
oratory should determine their own match criteria." J.A. at 2832,
2857. But see J.A. at 2738, 2853. Therefore, O'Dell's experts argued,
it was improper for the Commonwealth's experts to substitute the
state laboratory's and the FBI's match criteria for LifeCodes'
(although it was apparently proper for them to substitute their
conclusion for LifeCodes'). Second, according to O'Dell's experts
and that same NRC Report, use of a monomorphic probe-- upon
which LifeCodes relied to correct the conceded band shifting, J.A. at
2839-40 -- is ineffective to correct band shifting. J.A. at 2840-43,
2872. Of course, O'Dell's primary expert, Dr. Spence, a medical
geneticist, performed approximately 98% of his work in a clinical
environment where, if band shifting occurred, he could simply take
another sample from his living patients. J.A. at 2880-87, 2598, 2604-
05. The Commonwealth's expert countered, "[i]n the forensic field
. . . we only have so much of the sample. It is not like in the clinical
laboratory environment where you have a lot of blood where you can
go back and repeat a sample. . . . [Therefore] [w]e don't ignore [band
shifting and partialling; we try to correct them]." J.A. at 2846-47,
2742-43.

3.

The federal habeas court's factual findings regarding this testi-
mony are not particularly helpful,29 but the court did expressly credit
_________________________________________________________________

29 The federal habeas court concluded, "[b]ased on the evidence at the
evidentiary hearing, the blood on the jacket and the blood on the check-
ered shirt can be excluded as having a common origin. Again, based on
the evidence, the DNA comparison of the blood on the checkered shirt
and the victim's blood yielded a result that is `inconclusive.'" J.A. at
307-08. This conclusion is unhelpful and, indeed, is somewhat odd, in
that it restates an issue that nobody disputes, states another that is con-
trary to the evidence, and ignores the hotly contested issue in the testi-
mony. Every expert agreed that the stain on the shirt could be "excluded"
from coming from Schartner, yet the district court characterizes the com-
parison as "inconclusive." However, the real issue in dispute-- whether
the stain on the jacket was a "match" or "inconclusive" -- was ignored
in the district court's conclusions.

                    63
O'Dell's experts concerning the impropriety of substituting the state
crime lab's and the FBI's match criterion for LifeCodes'. J.A. at 308.
The district court further commented that use of monomorphic probes
to correct for band shifting is "controversial" Id. (citing People v.
Keene, 591 N.Y.S.2d 733 (N.Y. Sup. Ct. 1992)). Together, these two
findings suggest that it agreed that the stains on the jacket were "in-
conclusive."

Nevertheless, the district court was forced to conclude, J.A. at 308,
under the legal standard then in force, that O'Dell's new evidence
failed to establish actual innocence, because it did not demonstrate
"by clear and convincing evidence that but for constitutional error, no
reasonable juror would have found the petitioner" guilty of murder.
This standard, established by the Court in Sawyer v. Whitley, 505 U.S.
333, 336 (1992), for claims of actual innocence of the death penalty,
was adopted by this circuit for claims of actual innocence of the
underlying crime as well. Spencer, 18 F.3d at 236. Of course, the
Court subsequently rejected application of the Sawyer standard to
actual innocence claims at the guilt phase of trials, instead adopting
the more lenient test of Murray v. Carrier, 477 U.S. at 496: whether
petitioner has shown that "`a constitutional violation has probably
resulted in the conviction of one who is actually innocent,'" that is,
whether "it is more likely than not that no reasonable juror would
have convicted him in light of the new evidence." Schlup, 115 S. Ct.
at 867 (quoting Carrier).

Because the federal district court applied Sawyer instead of
Carrier, and because the court did in a footnote dictum find that
O'Dell would have met a less demanding standard of "a `fair proba-
bility' that, in light of all probative evidence available at the time of
his federal evidentiary hearing, `the trier of the facts would have
entertained a reasonable doubt of his guilt,'" J.A. at 308 n.18, O'Dell
argues that, at the very least, we must remand the case to the district
court to determine whether O'Dell's evidence meets the newly appli-
cable standard. Under the particular facts of this case, however, and
given that the district court has already made the kinds of findings
that are peculiarly within its province, we disagree.

The "fair probability" standard relied upon by the district court in
its obiter dictum, drawn from Justice Powell's plurality opinion in

                     64
Kuhlmann v. Wilson, 477 U.S. 436, 454 n.17 (1986), is "similar" to
the Carrier standard, Schlup, 115 S. Ct. at 863, and has been treated
as functionally the same, id. at 864-65. Under Schlup, though, it is the
Carrier formulation that is now controlling: Has O'Dell established
that "it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence?" Id. at 867.

This question is a mixed question of fact and law;30 indeed, the dis-
sent in Schlup characterized it as

          a classic mixing of apples and oranges. "More likely than
          not" is a quintessential charge to the finder of fact, while "no
          reasonable juror would have convicted him in the light of
          the new evidence" is an equally quintessential conclusion of
          law . . . .

Id. at 873 (Rehnquist, C.J., dissenting). Because this "hybrid . . . is
bound to be a source of confusion," id., we pause to attempt to fathom
it fully.

The district court, in making this determination, must look at two
elements: first, all of the evidence that the jury heard at trial, and sec-
ond, the newly proffered evidence. See Schlup, 115 S. Ct. at 867. If
it were to look at only the former, and to ask only whether no reason-
able juror could have convicted, then it would be doing nothing more
than evaluating the sufficiency of the evidence under Jackson v.
Virginia, 443 U.S. 307 (1979), a question of law reviewable de novo.
But the Carrier inquiry is different from that under Jackson in two
respects. First, it is asking not whether no reasonable juror could con-
vict -- a question of "power" -- but whether no reasonable juror
would convict -- a question of "likely behavior." Schlup, 115 S. Ct.
at 868. Thus, the Carrier standard "requires the district court to make
_________________________________________________________________

30 Justice O'Connor, a necessary member of the majority in Schlup,
made clear that the Court did not "disturb the traditional discretion of
district courts in this area, nor d[id] it speak to the standard of appellate
review for such judgments." 115 S. Ct. at 870 (O'Connor, concurring).
Because the district court abused its discretion by applying the wrong
legal standard, the Court did not address whether any less deferential
standard of review need apply. Id.

                     65
a probabilistic determination about what reasonable, properly
instructed jurors would do." Id. Second, Carrier adds to the calculus
the quantum of new evidence that the petitioner presents, evidence
whose credibility must be determined and evidence which may call
into question the credibility of prior evidence presented at trial. Id. at
868-69.

Ascertaining the credibility of evidence is "quintessentially" a task
for the fact-finder, and so the district court's factual findings regard-
ing the credibility of testimony it has actually heard are findings sub-
ject to review only under a clearly erroneous standard. But the federal
district court is in no better position than an appellate court to then
add that new evidence to the evidence that was presented at trial or
to speculate as to the likelihood that no reasonable juror would con-
vict based on the sum of all the evidence. Both courts, reviewing a
cold trial record, must determine whatever inferences and deductions
logically and reasonably can be made from all of the evidence and
then, to the best of their ability, guess as to the likelihood that no rea-
sonable juror would make those inferences necessary for conviction.
This is in some sense an application of "law" to facts. In any event,
we believe that such determinations are, for lack of a better word,
"mixed" questions of law and fact, and so are reviewable de novo.

In Schlup the Court remanded to the Court of Appeals with instruc-
tions to remand to the district court, but it did so there only because
that was "the most expeditious procedure" in light of the "fact-
intensive nature of the inquiry, together with the District Court's abil-
ity to take testimony from the few key witnesses if it deems that
course advisable." 115 S. Ct. at 869. In Schlup, "both the Court of
Appeals and the District Court [had] evaluated the record under an
improper standard," id., and the district court had heard no testimony
whatsoever, id. at 854. Here, in contrast, the district court has con-
ducted a full evidentiary hearing, made adequate factual findings, and
we are now able to apply the correct legal standard on appeal.

Because the district court made sufficient factual findings as to the
credibility of the witnesses that it heard, and because the remaining
portion of the Carrier inquiry is simply an application of law to the
combination of those facts and the trial record facts, we turn ourselves

                     66
to the question of whether O'Dell has established that it is more likely
than not that no reasonable juror would convict him.

4.

We do not believe that O'Dell has come even close to meeting
either the Kuhlmann standard or the "similar" Carrier standard. A rea-
sonable juror examining all of the evidence would have confronted
the following.

First, the mountain of circumstantial evidence. On the night of the
murder, both O'Dell and Schartner were at the County Line Lounge.
O'Dell left the club within fifteen minutes of when Schartner left.31
Not more than two and a half hours later, O'Dell appeared at a conve-
nience store with blood on his face, hands, hair, and clothes. The next
morning, O'Dell informed his former girlfriend that he was going to
Florida, and, several hours later, Schartner's bloody body was found
in a field across the street from the County Line Lounge.

O'Dell's first explanation for being covered in blood, which he
gave his former girlfriend that next morning and which he now admits
was a lie, was that he had vomited blood all over himself. His second
explanation, which he told the police when he was arrested, was that
the blood was from a nose bleed caused by being struck when he
attempted to stop a fight at another club that same night.32
_________________________________________________________________

31 In his briefing, O'Dell persists on disputing the time he left the club,
relying on trial testimony that he was there over a half hour after Schart-
ner left. See Petitioner's Br. at 47. But the Virginia Supreme Court
expressly found that O'Dell left within fifteen minutes of when Schartner
left, O'Dell, 364 S.E.2d at 495, and, under section 2254(d) and Sumner
v. Mata, 449 U.S. 539 (1981), we must accept that factual finding, sup-
ported by substantial evidence, as true.

32 O'Dell maintains that this second story is true and that trial testimony
supported it. For this proposition, see Petitioner's Br. at 7, O'Dell cites
his own federal writ of habeas corpus, J.A. at 35. His writ in turn cites
trial testimony, not that O'Dell was bloodied breaking up a fight, but
merely that a fight had occurred at the Brass Rail bar that night and that
when the supervisor went outside he did not see anyone other than
O'Dell, who was covered in blood. O'Dell then claimed that the persons
who had been fighting had left.

                    67
Helen Schartner's head had been beaten brutally with a "linear
cylindrical object." J.A. at 1414. O'Dell had been seen about a week
earlier with a pellet gun in his car, J.A. at 1531-36, and medical testi-
mony established that Schartner's wounds were consistent with the
weight and shape of that type of pellet gun, J.A. at 1413-17. More-
over, tire tracks found at the crime scene had the"identical" design
elements as the tires on O'Dell's car, J.A. at 1258, 1266. After exam-
ining patterns for some two thousand different tires and four or five
thousand different design units, the Commonwealth's expert could not
find a single tire, other than O'Dell's, that matched the tire tracks
found at the scene. J.A. at 1258-59, 1263.

Additionally, the direct physical evidence linking O'Dell to the
murder is overwhelming. On the right front seatcover of O'Dell's car,
investigators found a head hair consistent with Helen Schartner's but
not with O'Dell's hair. J.A. at 1912-13. On the "left seat driver's seat
back cover" of O'Dell's car, investigators found two hairs consistent
with Schartner's head hairs and inconsistent with O'Dell's, three hairs
consistent with O'Dell's head hairs and inconsistent with Schartner's,
and two hairs consistent with neither's. J.A. at 1913-14. And, on the
right front floor mat of O'Dell's car, investigators found one hair,
consistent with Helen Schartner's pubic hair, and not with O'Dell's.
J.A. at 1914-15.

Investigators also found, in Schartner's vagina and anus and on
O'Dell's shirt, seminal fluid that was consistent with a mixture of
O'Dell's and Schartner's bodily fluids. J.A. at 1889-96. O'Dell on
this appeal argues strenuously that the alleged "mixture" of bodily flu-
ids found in Schartner's anus shows that he could not have raped her,
because Schartner could not secrete vaginal fluids from her anus. Not
only is O'Dell not free to challenge this now on federal habeas
_________________________________________________________________

O'Dell concedes that this is contrary to the story he told Connie Craig,
J.A. at 2432, but maintains that he lied to Craig only to prevent her from
telling his parole officer he had been fighting at the bars, as she had done
on a previous occasion. Of course, Craig testified that O'Dell went to the
County Line Lounge on "practically" every Tuesday, J.A. at 1098, and
that he had told her he had been at the County Line Lounge on the very
night in question, J.A. at 1093-94, 1098.

                     68
(because he has proffered no new evidence relating to the seminal flu-
ids and the Virginia Supreme Court expressly found that the vaginal
and anal fluids were consistent with O'Dell's, O'Dell, 364 S.E.2d at
495), he is wrong in any event. As the Commonwealth's expert Ms.
Emrich explained at trial, and as O'Dell's appellate counsel appar-
ently misunderstands, the fluid found in Schartner is the predictable
result of mixing fluids from two secretors, like Schartner and O'Dell.
J.A. at 1881-84.

Secretors are persons whose bodily fluids carry with them charac-
teristics of their blood type; both Schartner and O'Dell were secretors.
Schartner's blood type was O, and her PGM type and PepA type (the
two enzymes that are evident in bodily fluids) were 2-1 and 1, respec-
tively. O'Dell's blood type is A, his PGM type 1, and his PepA type
1. Because both Schartner and O'Dell had the same PepA type (1),
the presence of that enzyme is not particularly revealing. The other
two types, however, are quite revealing.

As Emrich explained, both blood types and enzyme types function
in essentially the same way. Blood type A indicates the presence of
the A antigen, type B indicates the presence of B, AB indicates the
presence of both, and O indicates the presence of neither. If you mix
A with B, the mixture is AB; if you mix either A or B with AB, the
mixture is still AB; and if you mix A or B or AB with O, the mixture
is A, or B, or AB (depending on which you added to O). Likewise,
there are three common types of PGM, 1, 2, and 2-1. Type 2-1, like
blood type AB, is simply a combination of types 1 and 2. Thus, if you
mix 1 with 2, the combination is 2-1, as is the combination of either
1 or 2 with 2-1. J.A. at 1881-88.

In Schartner's vagina, Emrich found seminal fluid indicating blood
type A, PepA 1, and PGM 2-1. J.A. at 1889-90. The blood type (A)
is consistent with a mixture of O'Dell's (A) and Schartner's (O) bod-
ily fluids, the PepA type is consistent with both of their fluids, and
the PGM type (2-1) is consistent with a mixture of O'Dell's (1) and
Schartner's (2-1) bodily fluids. J.A. at 1890. That same mixture was
found in Schartner's anus, J.A. at 1891-92, and on three stains on
O'Dell's shirt, J.A. at 1895-96.

Even more incriminating were the spermatozoa found in Schart-
ner's genital swabs and in her genital scrapings. Those spermatozoa

                    69
were blood type A, PepA 1, and PGM 1, consistent with O'Dell's
blood and enzyme types and not with Schartner's. J.A. at 1893-94.
Thus, the spermatozoa, which could only have come from a man,
matched perfectly the sperm cells of Joseph O'Dell, and the seminal
fluid, which presumably came from the same man who produced the
spermatozoa, was entirely consistent with a mixture of O'Dell's and
Schartner's bodily fluids.

And herein lies the obvious failing in O'Dell's argument. O'Dell
maintains that, because seminal fluid type A, PepA 1, PGM 2-1, was
found in Schartner's anus, and because the anus does not secrete vagi-
nal fluids (and, presumably, he for some reason also asserts, by silent
implication and without evidence, that there are no other bodily secre-
tions in the anus), the man who raped Schartner must have had type
A, PepA 1, PGM 2-1 semen, not type A, PepA 1, PGM 1 like
O'Dell's. But, as the expert testimony explained, seminal fluid is
capable of mixing with other fluids to pick up their markers; the sper-
matozoa, on the other hand, were the man's alone, and they were type
A, PepA 1, PGM 1. Unless we are to indulge the fanciful possibility
that the sperm and the seminal fluid found in Schartner came from
different men, the only reasonable implication from this is that the
rapist's sperm and seminal fluid (prior to mixing with Schartner's flu-
ids) were both originally type A, PepA 1, PGM 1-- exactly like
O'Dell's.

In addition, a reasonable juror would also consider the testimony
of Steven Watson, to whom O'Dell confessed to murdering Helen
Schartner. Watson testified that O'Dell told him in jail that he had
met Schartner at the County Line Lounge, bought her a few drinks,
took her riding in his green Camaro, tried to "get a little" from her,
and, when she refused to "give it up," strangled her and dumped her
body. J.A. at 1674, 1685. Watson also testified that O'Dell had told
him that "he was going to walk on the charge" because "they didn't
have no evidence" and "no one had actually seen him kill her." J.A.
at 1675, 1686. Watson further testified that he had never seen any-
thing about the murder on television or in the newspaper, J.A. at
1675, 1686, and that he had neither been offered nor received any-
thing in return for his testimony, J.A. at 1675-76, 1680-82.

                    70
The jury heard at great length about Watson's prior convictions,
and O'Dell cross-examined him and other witnesses repeatedly
attempting to uncover any deal between Watson and the authorities.
J.A. at 1680-81, 1689-96, 2023-24, 2050. In addition, the jury heard
about the recent charges against Watson's wife that had been dropped
and against Watson that had been plea bargained to three years proba-
tion, J.A. at 1689-92, and it heard testimony from a state trooper that
Watson "wanted a deal," meaning "he didn't want to go to prison,"
J.A. at 2050. Nonetheless, the Virginia Supreme Court expressly
found that "O'Dell was unable to prove a plea agreement existed
between Watson and the Commonwealth." O'Dell, 364 S.E.2d at 498
n.4.33

And, finally, there was all of the blood evidence introduced at trial.
The Commonwealth's expert, Ms. Emrich, testified at length regarding
the great quantities of blood found on O'Dell's clothing and car, all
of which was consistent with Schartner's blood and inconsistent with
O'Dell's. See supra at 60-61. Helen Schartner's combination of blood
and enzyme type occurs in .3% (three out of a thousand) of the popu-
lation; O'Dell's occurs in .08% (eight out of ten thousand). J.A. at
1921. The DNA evidence that O'Dell introduced at the federal habeas
hearing was in no way inconsistent with that testimony, J.A. at 2815,
as even O'Dell's expert was forced to concede, J.A. at 2636, 2878.34
DNA testing is simply more discriminating than electrophoretic test-
_________________________________________________________________

33 O'Dell claims to have new evidence now substantiating his claim
that Watson had cut a deal, but that evidence does little to prove that
claim. See discussion infra at 74-75.

34 Dr. Guerrieri, an expert for the Commonwealth, explained at the state
habeas hearing yet another way how the DNA exclusion of the shirt
could still be consistent with the enzyme match on that same shirt:

          One possibility would be that there are two different sources of
          genetic material in that particular stain; that is to say in the DNA
          testing, as well as the serology testing, a large portion of the stain
          is often consumed in the analysis. So if you sample one region
          -- if Miss Emerich [sic] sampled one region in a particular loca-
          tion, and the commercial testing lab sample[d] adjacent to that,
          it's conceivable they could have been two different blood
          sources.

J.A. at 2751-52.

                    71
ing; the latter limits a blood sample to a range of people (in this case,
.3% of the population), whereas the former can limit it to just one
individual. J.A. at 2815, 2878.

Plus, a reasonable juror would have been confronted with O'Dell's
new DNA evidence. That juror would have seen the LifeCodes
Report, the Commonwealth's experts, and O'Dell's expert all agree-
ing that one of the stains on his shirt was from neither O'Dell nor
Schartner. Of course, this evidence would have contradicted O'Dell's
"alibi," that the blood on his clothing came from his own nose when
he was struck stopping a bar fight.35 And the juror would have
reviewed the LifeCodes DNA report conclusively stating that the
blood on O'Dell's jacket was Helen Schartner's. To be sure, that
juror would also have been confronted with the conflicting testimo-
nies of the Commonwealth's and O'Dell's experts concerning the
inferences to be drawn from the data upon which LifeCodes relied,
and, because the federal district court found that the blood on the
jacket was "inconclusive," we assume that the testimony of O'Dell's
expert was at least credible. But nonetheless, a reasonable juror would
have been presented with all the evidence: the LifeCodes report (stat-
ing conclusively that DNA proved the blood was Schartner's), the
Commonwealth's expert's testimony (stating that the data, even unad-
justed for band shifting, fell within the Virginia crime lab's and the
FBI's criteria for a positive DNA match), and O'Dell's expert (agree-
ing that band shifting had occurred but arguing that the blood evi-
dence was "inconclusive" because it fell slightly outside LifeCodes'
unadjusted match criterion of 1.8%).

And, finally, a reasonable juror could have considered that O'Dell
had been previously convicted in Florida of a crime virtually identical
_________________________________________________________________

35 Although his brief before this court argues that, during the alleged
fight at the Brass Rail, he "became covered with the blood of the two
other individuals," Petitioner's Br. at 7, the only support it cites for that
proposition is his own federal petition for habeas corpus. That petition,
in turn, states simply that "[d]uring the course of this fight, O'Dell's
clothes became covered with blood." J.A. at 35. Regardless, the Virginia
Supreme Court expressly found "O'Dell told the police the blood came
from a nose bleed caused by being struck while attempting to stop a fight
at another club," O'Dell, 364 S.E.2d at 495 n.2 (emphasis added).

                     72
to this one, and that he had been paroled, after serving eight years on
a 99-year sentence, only fourteen months before Schartner was mur-
dered. There, the victim testified that O'Dell had abducted her,
robbed her, struck her several times on the head with his gun, and
choked her, all in an effort to force her to submit to his sexual
advances. See O'Dell, 364 S.E.2d at 510; J.A. at 2345-47. This testi-
mony could very well have been admitted at trial as indicative of
O'Dell's modus operandi, see Spencer v. Commonwealth, 393 S.E.2d
609, 616-17 (Va.), cert. denied, 498 U.S. 908 (1990); cf. Fed. R. Evid.
404(b); Weinstein's Evidence ¶404[16] at 404-100 to 404-102, and,
regardless of its admissibility, should properly be considered in
assessing O'Dell's claim of "actual innocence," Schlup, 115 S. Ct. at
867.

When viewing all of this evidence -- being together at the County
Line Lounge, leaving within fifteen minutes of each other, being cov-
ered with blood, planning to go suddenly to Florida, having inconsis-
tent alibis, plus the wounds matching his gun, the tracks matching his
tires, the hairs, the semen, the spermatozoa, the blood enzymes, the
blood DNA on the jacket, the confession, and the nearly identical ear-
lier crime -- we do not believe it can even remotely be claimed that
O'Dell has established that it is more likely than not that no reason-
able juror would have convicted him. The only thing that O'Dell has
demonstrated is that one of the many blood stains on his clothing did
not come from either himself or Helen Schartner; that he also had
someone else's blood on his shirt by no means shows that he did not
murder Helen Schartner, particularly in light of the vast other evi-
dence that he did. We therefore hold that O'Dell has not passed
through the "narrow" gateway of actual innocence, and so are barred
from reviewing his procedurally defaulted claims on federal habeas.

IV.

O'Dell also challenges the federal district court's decision to grant
him a full evidentiary hearing on only the DNA evidence, without
allowing him to present other "new" evidence disputing the expert
testimony at trial concerning the effect of intermingling bodily fluids,
other unspecified circumstantial evidence linking him to the crime,
and the testimony of cellmate Stephen Watson that O'Dell had con-

                    73
fessed. We conclude that the district court was entirely within its dis-
cretion in so limiting the hearing.

O'Dell had the full opportunity to develop these factual bases in
state court. In Keeney v. Tamayo-Reyes, 504 U.S. 1, 11 (1992), the
Supreme Court held that a federal habeas petitioner

          is entitled to an evidentiary hearing if he can show cause for
          his failure to develop the facts in state-court proceedings
          and actual prejudice resulting from that failure.

The Court also "adopt[ed] the narrow exception to the cause-and-
prejudice requirement," holding that

          [a] habeas petitioner's failure to develop a claim in state-
          court proceedings will be excused and a hearing mandated
          if he can show that a fundamental miscarriage of justice
          would result from failure to hold a federal evidentiary hear-
          ing.

Id. at 11-12. Except in regards to Watson's testimony, O'Dell makes
no claim of cause or prejudice. Instead, he argues that it would be "a
fundamental miscarriage of justice" not to hold an evidentiary hearing
on these other claims. Petitioner's Br. at 53. For analogous reasons to
those explained above, we do not believe O'Dell has come even close
to demonstrating a fundamental miscarriage of justice from the dis-
trict court's decision not to grant him an unrestricted evidentiary hear-
ing.

O'Dell also claims that he has demonstrated cause and prejudice
for his failure to develop the factual record in state court concerning
Watson's testimony. O'Dell has continually maintained that Watson
gave false testimony about O'Dell's confession in exchange for a plea
agreement with the authorities, and he now proffers an affidavit of a
private investigator who interviewed Watson some five years after the
trial and claims to have uncovered some incriminating statements.
O'Dell argues that Watson's alleged perjury and the prosecution's
failure to correct that perjury (by disclosing that plea agreement as
required by Brady v. Maryland, 373 U.S. 83 (1963)), along with the

                     74
trial court's limitation of his cross examination of Watson, constituted
cause for his failing to adequately develop the factual record before
the state court.

We disagree. Although the alleged perjury and prosecution cover-
up is external to O'Dell, the only "new" evidence he has is the affida-
vit from his investigator's interview of Watson. O'Dell has proffered
no reason why his investigator was not able to interview Watson
before trial. Moreover, the state court allowed O'Dell considerable
leeway in cross-examining Watson about any plea bargains or deals,
and Watson repeatedly denied any such agreements. J.A. at 1680-81,
1689-96, 2023-24.

And, regardless, O'Dell could not possibly show any prejudice.
First, his "new evidence" was of dubious value. The private investiga-
tor, who has never had his story subjected to cross-examination,
claimed that Watson stated that he really did not know "how the girl
was killed" (contradicting his trial testimony that O'Dell said he had
strangled her), that O'Dell "could have been just bragging," and that
"[t]o [his] knowledge, there was no deals, they didn't go through;
. . . [He] did not know of any deals at all. [He's] not saying there
wasn't, but [he himself] did not know of any." J.A. at 238-39 (empha-
sis omitted). None of these statements prove, or even suggest, the
presence of a plea bargain, nor do they prove O'Dell's innocence, as
the district court expressly found before concluding "the new evi-
dence does not merit a hearing." J.A. at 345.

Second, even if it were of value, the evidence was almost certainly
cumulative. The jury heard, at length, that Watson's family had a rep-
utation for untruthfulness, that Watson was a seven-time convicted
felon, that Watson and his wife had recently been facing criminal
charges, that Watson had wanted "to make a deal" to avoid prison
time, and that recent charges against Watson's wife had been dropped
and Watson had received only three years probation on multiple
breaking and entering charges. We do not think that O'Dell's investi-
gator's claims would have substantially increased the reasons that the
jury had to doubt Watson's credibility and to scrutinize his story care-
fully.

Given the overwhelming other evidence of guilt detailed above, we
are certain that nothing said by this investigator concerning Watson

                    75
would have given any juror reasonable doubt as to whether O'Dell in
fact murdered Helen Schartner on the night of February 5, 1985.

"Federal Courts are not forums in which to relitigate state trials."
Barefoot v. Estelle, 463 U.S. 880, 887 (1983). Here, the Virginia
Supreme Court expressly found that,

          [a]t trial, the court permitted O'Dell to fully develop all pre-
          trial contacts and negotiations Watson had with the Com-
          monwealth. O'Dell was unable to prove a plea agreement
          existed between Watson and the Commonwealth."

O'Dell, 364 S.E.2d at 498 n.4. Under 28 U.S.C. § 2254(d), this fac-
tual finding is entitled to a presumption of correctness, and O'Dell has
given us no "convincing evidence that the factual determination by
the State court was erroneous."36

CONCLUSION

The judgment of the district court granting the petitioner's writ of
habeas corpus is reversed, and the case is remanded with instructions
to reinstate the death sentence. Likewise, the portion of the district
court opinion finding that petitioner had not procedurally defaulted
the claims that he failed to properly appeal from the state habeas
court is reversed. The remainder of the district court opinion, finding
that petitioner has not demonstrated actual innocence, is affirmed
under the legal standard of Schlup.

REVERSED IN PART AND AFFIRMED IN PART

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

I agree with the majority that the district court was correct in hold-
ing that O'Dell's challenges to his conviction are without merit, and
_________________________________________________________________

36 Because we reject O'Dell's claims on the grounds that we do, we
need not consider his claims under the Antiterrorism and Effective Death
Penalty Act of 1996. Under that newly-enacted statute, O'Dell's claims,
of course, would have even less merit, given the considerably more
demanding standards therein imposed on habeas petitioners.

                     76
I concur in those portions of the majority opinion affirming the dis-
trict court's judgment denying O'Dell relief from his conviction.1

However, I must respectfully dissent from that part of the majority
opinion holding that the district court erred in vacating O'Dell's death
sentence on the basis of the Supreme Court's recent decision in
Simmons v. South Carolina, ___ U.S. ___, 114 S. Ct. 2187 (1994).
For the reasons that follow, I am persuaded that Simmons did not
announce a "new rule" under Teague v. Lane, 489 U.S. 288 (1989),
and that the district court was also right in granting O'Dell relief from
his sentence. I would, therefore, affirm the district court's judgment
in its entirety, and I must dissent from the majority's failure to uphold
that portion of the district court's decision.

I.

A.

In Simmons v. South Carolina, ___ U.S. ___, 114 S. Ct. 2187
(1994), the Supreme Court reversed a defendant's capital sentence
after determining that his constitutional rights had been violated when
the trial court refused to allow defense counsel to inform the jury that
the defendant was statutorily ineligible for parole. During sentencing
deliberations, the parole issue occurred to the jury, which asked the
judge: "Does the imposition of a life sentence carry with it the possi-
bility of parole?" Id. at 2192. The trial judge responded that parole
eligibility "is not a proper issue for your consideration." Id.

Before the United States Supreme Court, Simmons claimed that the
trial court's refusal to inform the jury that he would be ineligible for
parole had violated his rights under the Due Process Clause of the
United States Constitution.2 Seven Justices agreed.3 Writing for a plu-
_________________________________________________________________

1 Like the majority, I also decline to address the question of the applica-
bility of the Antiterrorism and Effective Death Penalty Act of 1966 to
this case.

2 Simmons also raised a claim under the Eighth Amendment, the merits
of which the Court's plurality opinion declined to address. Simmons, 114
S. Ct. at 2193 n.4. Justice Souter, in a concurring opinion joined by Jus-

                     77
rality that included Justices Stevens, Ginsburg, and Breyer, Justice
Blackmun stated: "We hold that where the defendant's future danger-
ousness 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 ineligible." Id. at 2190 (plurality opinion). Jus-
tice Blackmun's opinion appears to require that a court inform the
jury sua sponte that the defendant will remain imprisoned for life,
regardless of whether the defendant requests such an instruction.

We read the precise holding of Simmons, however, more narrowly.
Justice O'Connor based her opinion concurring in the judgment, in
which the Chief Justice and Justice Kennedy joined, on the "hallmark
of due process" that a defendant is entitled to"meet the State's case
against him." Id. at 2200 (O'Connor, J., concurring in the judgment).
As Justice O'Connor's opinion encapsulates the "position taken by
those Members [of the Court] who concurred in the judgments on the
narrowest ground," Marks v. United States, 430 U.S. 188, 193 (1977),
we use her statement of the Simmons "rule" as the benchmark for our
analysis below: "Where the State puts the defendant's future danger-
ousness in issue, and the only available alternative sentence to death
is life imprisonment without possibility of parole, due process entitles
the defendant to inform the capital sentencing jury--by either argu-
ment or instruction--that he is parole ineligible." Id. at 2201
(O'Connor, J., concurring).

B.

The Commonwealth concedes that the facts of this case are indis-
tinguishable from those in Simmons. As in Simmons, the trial court
denied the defendant's request for an instruction on parole ineligibil-
ity, and, like Simmons, O'Dell was prohibited from rebutting the
prosecution's argument that he would be dangerous in the future with
evidence that he would be incarcerated for the remainder of his life.
_________________________________________________________________

tice Stevens, expressed a belief that the judgment reached by the court
also was compelled by the Eighth Amendment. Id. at 2198-99 (Souter,
J., concurring).

3 Justice Scalia wrote a dissent in which Justice Thomas joined. Id. at
2201 (Scalia, J., dissenting).

                     78
The Commonwealth attempts to distance itself from Simmons by
arguing that the case announced a "new rule" of constitutional crimi-
nal procedure inapplicable on collateral review to O'Dell's already
final conviction under the non retroactivity doctrine of Teague v.
Lane, 489 U.S. 288 (1989) (plurality opinion). Review of the district
court's application of Teague is conducted de novo. See Spaziano v.
Singletary, 36 F.3d 1028, 1041 (11th Cir. 1994), cert. denied, ___
U.S. ___, 115 S. Ct. 911 (1995).

As a general proposition, "`a case announces a new rule if the
result was not dictated by precedent existing at the time the defen-
dant's conviction became final.'" Turner v. Williams, 35 F.3d 872,
879 (4th Cir. 1994) (quoting Teague, 489 U.S. at 301 (plurality opin-
ion)), cert. denied, ___ U.S. ___, 115 S. Ct. 1359 (1995). In Caspari
v. Bohlen, ___ U.S. ___, 114 S. Ct. 948 (1994), the Court set forth
the following three-pronged approach for determining what consti-
tutes a new rule:

          First, the court must ascertain the date on which the defen-
          dant's conviction and sentence became final for Teague pur-
          poses. Second, the court must "[s]urve[y] the legal
          landscape as it then existed," and "determine whether a state
          court considering [the defendant's] claim at the time his
          conviction became final would have felt compelled by exist-
          ing precedent to conclude that the rule [he] seeks was
          required by the Constitution." Finally, even if the court
          determines that the defendant seeks the benefit of a new
          rule, the court must decide whether that rule falls within one
          of the two narrow exceptions to the nonretroactivity princi-
          ple.

Id. at 953 (citations omitted) (quoting Graham v. Collins, 506 U.S.
___, ___, 113 S. Ct. 892, 898 (1993), and Saffle v. Parks, 494 U.S.
484, 488 (1990)). Proceeding through the Caspari analysis, we note
first that O'Dell's conviction became final on October 3, 1988.
O'Dell v. Virginia, 488 U.S. 871 (1988). Our task, then, is to deter-
mine whether an objectively reasonable jurist in October 1988 would

                    79
have felt compelled to conclude that the rule applied in Simmons was
"required by the Constitution." Turner v. Williams, 35 F.3d at 880.4

The two major cases on which the Simmons Court principally
relied had been decided in 1977 and 1986. See Gardner v. Florida,
430 U.S. 349 (1977), and Skipper v. South Carolina, 476 U.S. 1 (1986).5
_________________________________________________________________

4 We have found no authority from other federal appellate courts that
addresses squarely the issue before us. In Stewart v. Lane, 60 F.3d 296
(7th Cir. 1995), the Seventh Circuit held that Simmons was unavailable
to a habeas petitioner whose convictions had become final on May 20
and May 28, 1985, because the case fell within those "`gradual develop-
ments in the law over which reasonable jurists may disagree.'" Stewart,
60 F.3d at 302 (quoting Sawyer, 497 U.S. at 236). However, the Stewart
panel expressly limited its holding to convictions that became final prior
to the Supreme Court's decision in Skipper v. South Carolina, 476 U.S.
1 (1986):

          After reviewing the state of the law in May, 1985, we conclude
          that the rule sought by Stewart and recognized by the Simmons
          Court, was not dictated by existing precedent. Simmons relies
          primarily on Skipper v. South Carolina and Gardner v. Florida.
          Stewart cannot benefit from the rule of Skipper, however,
          because the Supreme Court rendered its decision in that case
          eleven months after Stewart's convictions became final.

Stewart, 60 F.3d at 300-301 (citations omitted). Given the centrality of
Skipper to the claim before us, see infra, the decision whether Stewart's
Simmons claim was Teague-barred was a closer one. Certainly, it does
not dictate a decision in the factually distinct situation before us.

Two other circuits have declined to express an opinion on whether
Simmons announced a new rule. See Ingram v. Zant, 26 F.3d 1047, 1054
n.5 (11th Cir. 1994) (distinguishing the facts before it from those in
Simmons), cert. denied, ___ U.S. ___, 115 S. Ct. 1137 (1995); cf.
Allridge v. Scott, 41 F.3d 213, 222 n.11 (5th Cir. 1994) (observing that
the extension of Simmons sought by the petitioner would constitute a new
rule under Teague), cert. denied, ___ U.S. ___, 115 S. Ct. 1959 (1995).

5 The Simmons Court also cited Crane v. Kentucky, 476 U.S. 683, 690
(1986) (noting that due process entitles a defendant to "a meaningful
opportunity to present a complete defense"), and Ake v. Oklahoma, 470
U.S. 68, 83-87 (1985) (holding that due process entitles an indigent
defendant to the assistance of a psychiatrist for the development of his
defense). Simmons, 114 S. Ct. at 2194 (plurality opinion).

                    80
In Gardner, the Supreme Court ruled that the Due Process Clause
does not permit the execution of a person "on the basis of information
which he had no opportunity to deny or explain," in that case a pre-
sentence report kept from the defendant. 430 U.S. at 362. In Skipper,
the Court elaborated on the principle it had announced in Gardner
and held that a defendant's rights under the Eighth and Fourteenth
Amendments were violated by the trial court's refusal to admit evi-
dence of the defendant's good behavior in the penalty phase of his
capital trial. 476 U.S. at 5 n.1, 8-9. According to the Skipper Court,
"[w]here the prosecution specifically relies on a prediction of future
dangerousness in asking for the death penalty," elemental due process
principles require the admission of the defendant's relevant evidence
in rebuttal. Id. at 5 n.1; see also id. at 9 (Powell, J., concurring in the
judgment) ("[B]ecause petitioner was not allowed to rebut evidence
and argument used against him," the defendant was denied due pro-
cess.).

Each of the defendants in Gardner, Skipper, and Simmons were
barred from presenting to the jury evidence of critical importance to
the fact-finding process. The similarity between the situation that con-
fronted Skipper and Simmons is especially striking. Surely a Consti-
tution that entitles a defendant to rebut the prosecution's argument of
future dangerousness with evidence of his good behavior in prison
likewise entitles him to inform the jury that he will remain incarcer-
ated for life. Cf. id. at 5 n.1. Thus, it would have been an illogical
application of Skipper "to [have] decide[d] that it did not extend to the
facts of" Simmons. See Butler v. McKellar, 494 U.S. 407, 415 (1990).

In Turner v. Williams, we noted the "critical distinction between
the extension of an existing rule on collateral review and the mere
application of an existing normative rule . . . to a new set of facts."
35 F.3d at 884. Similarly, we noted in Correll v. Thompson, 63 F.3d
1279 (4th Cir. 1995), that Teague was not an obstacle where "[t]he
question presented to us merely requires the application of [prior]
decisions to a new set of facts--not an extension of precedent to
create a new rule." Id. at 1285 n.5. The normative formulation from
which Simmons sprang was enunciated in Gardner and, even more
clearly, in Skipper. It need not previously have been applied in a fac-
tually identical situation in order to avoid classification as a "new
rule." See Stringer v. Black, 503 U.S. 222, 227-29 (1992). For "when

                     81
we apply an extant normative rule to a new set of facts (leaving intact
the extant rule) generally we do not announce a new constitutional
rule of criminal procedure for purposes of Teague." Id. at 885; see
also id. ("`If a proffered factual distinction between the case under
consideration and pre-existing precedent does not change the force
with which the precedent's underlying principle applies, the distinc-
tion is not meaningful and any deviation from precedent is not reason-
able.'") (quoting Wright v. West, 505 U.S. 277, 304 (1992)
(O'Connor, J., concurring in the judgment)).

The Simmons plurality reached the conclusion that its decision was
"compel[led]" by Gardner and Skipper, cases handed down years
before O'Dell's conviction became final. Simmons , 114 S. Ct. at 2194
(plurality opinion).6 The Supreme Court has recognized, however,
that a court's indication that a case is "directly controlled" by earlier
authority is not dispositive of the new rule issue. See Butler, 494 U.S.
at 414. Although such language is not conclusive, see id. at 415, it is
a factor in assessing whether an objectively reasonable jurist would
have predicted a particular decision.
_________________________________________________________________

6 Nothing in Justice O'Connor's opinion concurring in the judgment
contradicts the plurality's conclusion that "it is clear that the State denied
petitioner due process." Simmons, 114 S. Ct. at 2193 (plurality opinion)
(emphasis added). The Commonwealth would have me read the plurality
and concurring opinions to disagree over the plurality's conclusion that
Simmons was compelled by existing precedent. I see the divergence dif-
ferently. Unlike the Justices concurring in the judgment, the plurality
would recognize a constitutional violation even where the defendant did
not seek to rebut evidence that he would pose a danger in the future.
Compare id. at 2190 (plurality opinion) ("due process requires that the
sentencing jury be informed that the defendant is parole ineligible") with
id. at 2201 (O'Conner, J., concurring in the judgment) ("due process enti-
tles the defendant to inform the capital sentencing jury--by either argu-
ment or instruction--that he is parole ineligible"). Because the issue is
not before me, I do not address whether the plurality's position would
constitute a new rule under Teague. Because this case falls within the
most narrow reading of Simmons, that provided by Justice O'Connor's
concurrence, O'Dell neither seeks nor requires the application of a
broader mandate.



                     82
Similarly, that a judgment garners support from a substantial
majority of the Court's Justices provides an indication that a decision
reasonably was expected. In the case before me, seven Justices
accepted Simmons' argument that his due process rights had been
violated because he was not allowed to present evidence rebutting the
state's future dangerousness argument. I also note that a substantial
majority of states had rejected the practice disapproved of in
Simmons. At the time of that decision, "only two states other than
South Carolina [had] a life-without-parole sentencing alternative to
capital punishment for some or all convicted murderers but refuse[d]
to inform sentencing juries of this fact." Simmons, 114 S. Ct. at 2196
n.8.

In arguing that Simmons announced a new rule, the Commonwealth
and the majority rely heavily on California v. Ramos, 463 U.S. 992
(1983). In that case, the Court upheld as consistent with due process
a California sentencing provision that permitted the trial court to
advise the jury of the Governor's power to commute a life sentence,
but not requiring it to inform the jury of his power to commute a
death sentence. According to the Ramos Court, the instruction "d[id]
not violate any of the substantive limitations this Court's precedents
have imposed on the capital sentencing process." Id. at 1013. As Jus-
tice Blackmun noted in Simmons, however, Ramos is not inconsistent
with the Gardner/Skipper rule applied inSimmons.7 Id. at 2196. The
_________________________________________________________________

7 According to Justice Blackmun:

          It is true that Ramos stands for the broad proposition that we
          generally will defer to a State's determination as to what a jury
          should and should not be told about sentencing. . . . States rea-
          sonably may conclude that truthful information regarding the
          availability of commutation, pardon, and the like, should be kept
          from the jury in order to provide "greater protection in [the
          States'] criminal justice system than the Federal Constitution
          requires." Concomitantly, nothing in the Constitution prohibits
          the prosecution from arguing any truthful information relating to
          parole or other forms of early release.

          But if the State rests its case for imposing the death penalty at
          least in part on the premise that the defendant will be dangerous
          in the future, the fact the alternative sentence to death is life

                    83
Ramos Court explicitly upheld the California statute because it did
"not preclude the defendant from offering any evidence or argument
regarding the Governor's power to commute a life sentence." 463
U.S. at 1004. Moreover, Ramos "emphasized that informing the jury
of the Governor's power to commute a sentence of life without possi-
bility of parole was merely an accurate statement of a potential sen-
tencing alternative." Ramos, 463 at 1009. In contrast, the Simmons
problem occurs where a defendant is prohibited from presenting
information necessary to correct a critical misapprehension created by
the prosecution,8 and Gardner and Skipper demonstrate that a capital
defendant must be afforded the opportunity to rebut evidence offered
by the prosecution regarding his future dangerousness.9

I recognize that some courts, including this one, had interpreted the
language in Ramos broadly and reached what at first glance appears
to be a result contrary to Simmons. Most of those decisions, however,
actually did not involve a true Simmons situation: a capital defendant
_________________________________________________________________

          without parole will necessarily undercut the State's argument
          regarding the threat the defendant poses to society. Because
          truthful information of parole ineligibility allows the defendant
          to "deny or explain" the showing of future dangerousness, due
          process plainly requires that he be allowed to bring it to the
          jury's attention by way of argument by defense counsel or an
          instruction from the court.

Simmons, 114 S. Ct. at 2196 (plurality opinion) (citation omitted).

8 In recognizing the analytical distinctions between these lines of
authority, it should be remembered that Ramos falls chronologically
between Skipper and Gardner. The Ramos Court found no need to over-
rule or limit Gardner. Likewise, the Skipper Court did not find it neces-
sary to distance itself from Ramos to hold that a capital defendant is
entitled to rebut evidence of future dangerousness.

9 Assessing how a reasonable jurist might have analyzed any perceived
conflict between Ramos and Skipper, it is much easier to distinguish the
commutation power at issue in Ramos than the evidence of a capital
defendant's good behavior at issue in Skipper. Compared with parole,
commutation is a relatively minor power that is rarely invoked and less
central to the question of future dangerousness. Most importantly, the
impact of an instruction on the possibility of commutation in a capital
jury's sentencing deliberation is unclear.

                    84
seeking to rebut the prosecution's contention of future dangerousness
with evidence of his statutory ineligibility for parole. Both Turner v.
Bass, 753 F.2d 342 (4th Cir. 1985), rev'd on other grounds sub nom.
Turner v. Murray, 476 U.S. 28 (1986), and Peterson v. Murray, 904
F.2d 882 (4th Cir. 1990), on which the Commonwealth relies exten-
sively, involved factually distinct circumstances.10 As I have con-
_________________________________________________________________

10 In Turner v. Bass, we determined that, "while it is constitutionally
permissible to instruct the jury on the subject of parole, such an instruc-
tion is not constitutionally required." 753 F.2d at 354. However, the facts
in Turner v. Bass are distinguishable from those in Simmons and this
case. Turner clearly was eligible for parole, as he sought an instruction
that "the parole board is permitted to grant parole only after finding that
the prisoner's release will serve his interests and the interests of society."
Turner v. Bass, 753 F.2d at 353. Importantly, Skipper--with its clear
mandate that a defendant is entitled to rebut the prosecution's claim of
future dangerousness--had yet to be decided.

In Peterson, the petitioner would have been ineligible for parole only
for a period of twenty years. 904 F.2d at 882. Also, the Peterson panel
rested its holding on the right to present mitigating evidence under the
Eighth Amendment doctrine of Lockett v. Ohio, 438 U.S. 586 (1978), not
that entitling a defendant to rebut damaging evidence presented by the
prosecution under the Fourteenth Amendment jurisprudence of Gardner
and Skipper. Peterson, 904 F.2d at 887 ("`[S]tates are free to structure
and shape consideration of mitigating evidence.'" (quoting Boyd v.
California, 494 U.S. 370, 377 (1990)). In fact, the Peterson panel failed
to distinguish Gardner and Skipper in any way, presumably because the
cases were inapplicable to the claim before it. I note as well that Peterson
had not been decided at the time O'Dell's conviction became final, and
therefore could not have influenced a reasonable jurist in any event.
Finally, the Peterson panel considered itself bound by our earlier deci-
sion in Turner, see infra note 8, which was decided without benefit of
the intervening decision in Skipper. Peterson, 904 F.2d at 887 ("Our
holding in Turner controls here.").

The other Court of Appeals case on which the Commonwealth relies,
O'Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983), is similarly distinguish-
able. There is no indication that the defendant in O'Bryan was ineligible
for parole. He challenged the trial court's "refusal to instruct the jury
about the law governing the Board of Pardons and Paroles in relation to
inmates sentenced to life imprisonment," in order to correct the "widely
held misconception that a life sentence will result in a defendant's only
serving nine or ten years in prison." Id. at 388. Again, there is no sign

                     85
strued it above, Simmons applies only in this relatively narrow
situation. Were the Simmons "rule" to be read broadly, it might indeed
run afoul of Ramos and necessarily be considered "new." As even the
Commonwealth recognized at oral argument, however, "[t]hey did not
have to overrule Ramos to write the Simmons opinion."

Moreover, "the mere existence of [prior] conflicting authority does
not necessarily mean a rule is new." Wright, 505 U.S. at 304
(O'Connor, J., concurring in the judgment). As we discussed exten-
sively in Turner v. Williams, 35 F.3d at 883-84, the Supreme Court
held in Penry v. Lynaugh, 492 U.S. 302 (1989), that the petitioner's
constitutional claim was not precluded by Teague, despite the Fifth
Circuit's conclusion that its previous decisions rejecting similar
claims barred consideration of Penry's. See Turner v. Williams, 35
F.3d at 884. Penry "did not seek a new rule because he simply sought
the application (not the extension) of a preexisting rule of law in a
new factual setting." Id.

Similarly, Simmons applied the rule announced in Gardner and
reaffirmed in Skipper to a different, but related, factual situation: the
particular evidence the defendant sought to introduce to rebut the
prosecution's evidence of future dangerousness was his statutory inel-
igibility for parole. As Justice Blackmun explained, and the Common-
wealth conceded by admitting that Ramos remained good law after
Simmons, Ramos and its progeny are not inconsistent with Simmons.
See Simmons, 114 S. Ct. at 2196 (plurality opinion). At bottom,
Simmons examines whether a person who is subjected to the death
_________________________________________________________________

that the petitioner sought to remedy a misimpression created by the pros-
ecution's argument that he would be dangerous in the future. It is, in fact,
consistent with Ramos that the Fifth Circuit would reject a petitioner's
general complaint that a jury might misunderstand the meaning of a life
sentence as not being cognizable under the Constitution.

The state law cases on which the Commonwealth relies are similarly
distinguishable. See, e.g., Jenkins v. Commonwealth, 423 S.E.2d 360,
369-70 (Va. 1992) (defendant eligible for parole after thirty years), cert.
denied, ___ U.S. ___, 113 S. Ct. 1862 (1993); Poyner v. Commonwealth,
329 S.E.2d 815, 828 (Va.) (decided prior to Skipper, and no indication
of parole ineligibility), cert. denied, 474 U.S. 865 (1985).

                     86
penalty on future dangerousness grounds is entitled to rebut that argu-
ment with highly relevant evidence, not the presentation of a parole
eligibility scheme to a jury. Cf. Hunt v. Nuth, 57 F.3d 1327, 1334 (4th
Cir. 1995) (citing Simmons as standing for the proposition that "the
crucial significance of parole ineligibility in a capital sentencing is its
relationship to future dangerousness and the ultimate objective of
incapacitating the offender from inflicting future harm on society"
(emphasis added)). Ramos, on the other hand, involved the applica-
tion of a more general rule concerning a state's discretion to offer or
withhold the details of its commutation and early release systems.
Because Ramos does not conflict with the more specific principle
employed in Simmons, see supra, the Simmons Court could apply
Skipper and Gardner without announcing a new rule of constitutional
criminal procedure, at least as to convictions that became final after
those cases were decided.

Applying Teague "leaves something to be desired, for `[i]t is
admittedly often difficult to determine when a case announces a new
rule . . . .'" Turner v. Williams, 35 F.3d at 879 (quoting Teague, 489
U.S. at 301 (plurality opinion)). In this case, however, the Common-
wealth is forced to argue that Simmons announced a new rule because
it was not dictated by one line of authority (Ramos and its progeny),
when another line of more relevant cases compelled its result.
Because the legal landscape of 1988 mandated the decision reached
by the Supreme Court in Simmons, I believe that O'Dell does not seek
the application of a "new rule" of constitutional criminal procedure.11
_________________________________________________________________

11 Because of my conclusion that O'Dell's Simmons claim is not
Teague-barred, I do not address his argument that Simmons fits within
the Teague exception for "`watershed rules of criminal procedure' impli-
cating the fundamental fairness and accuracy of the criminal proceed-
ing." See Turner v. Williams, 35 F.3d at 878 n.5 (quoting Saffle v. Parks,
494 U.S. 484, 495 (1990)). However, it seems to me that a strong argu-
ment could be made that when a state undertakes to impose a death sen-
tence solely on the ground that a capital defendant poses a further
danger, "fundamental fairness and the accuracy of the criminal proceed-
ing" demand that he not be precluded from showing that he was, by vir-
tue of the law of that state, parole ineligible.

                     87
C.

Having determined that Simmons applies, I turn now to the Com-
monwealth's argument that any Simmons error was harmless. On
habeas review, a constitutional violation must have had a "substantial
and injurious effect or influence in determining the jury's verdict."
Brecht v. Abrahamson, 509 U.S. ___, ___, 113 S. Ct. 1710, 1712
(1993). Contrary to our earlier decision in Smith v. Dixon, 14 F.3d
956, 980 (4th Cir. 1994) (en banc), cert. denied, ___ U.S. ___, 115
S. Ct. 129 (1995), the Supreme Court recently held a petitioner does
not carry this burden. O'Neal v. McAninch, ___ U.S. ___, ___, 115
S. Ct. 992, 994 ((1995). Moreover, the Court explained that in a close
case, where "the conscientious judge [is] in grave doubt about the
likely effect of an error on the jury's verdict," the habeas petitioner
"must win." Id.

The Commonwealth makes three specific arguments as to why the
Simmons error suffered by O'Dell was harmless. First, it contends that
the district court failed to find that O'Dell was ineligible for parole.
The Virginia Supreme Court found that O'Dell had been convicted of
three felonies within the meaning of Virginia Code § 53.1-151(B1),
making him ineligible for parole under state law. The fact that the
federal district court failed to make a specific finding to that effect is
immaterial. Furthermore, in light of the Commonwealth's concession
that O'Dell's situation falls within Simmons, this argument is trivial.

Second, the Commonwealth argues that O'Dell actually informed
the jury that he would remain imprisoned for the remainder of his life.
As support for this proposition, it cites a rambling answer by O'Dell
to a question about his age:

          I am forty-five -- will be 45 on September 20. It's just
          like having a life sentence to go back to prison. I got sixteen
          years. I do fifteen on a life sentence. Okay. If I went back
          to prison without this conviction, I am doing a life sentence.
          I am doing a life sentence. I am never going to get out. It
          don't make no difference. I am never going to get out.

Joint Appendix at 2433. Simmons does hold that a jury's information
about parole eligibility need not come by way of a court's instruction;

                     88
it can come from defense counsel instead. See Simmons, 114 S. Ct.
at 2200-01 (O'Connor, J., concurring in the judgment). More, how-
ever, is required for effective conveyance of the material than was
allowed O'Dell in this case. The trial judge found as much when he
denied the Commonwealth's motion to strike O'Dell's testimony on
the grounds that it informed the jury about his parole ineligibility.
Joint Appendix at 2433. O'Dell's remarks did not effectively convey
the evidence most critical to rebutting future dangerousness--that he
was ineligible for parole under state law.

The Commonwealth's third argument rests on its assertion that
O'Dell's jury sentenced him to death on the basis of two aggravating
factors, vileness as well as future dangerousness. Under Zant v.
Stephens, 462 U.S. 862 (1983), where one valid aggravating factor is
sufficient to support a death sentence, that sentence need not be set
aside simply because the jury also found an invalid aggravating fac-
tor. Id. at 884; accord Smith v. Procunier, 769 F.2d 170, 173 (4th Cir.
1985), aff'd sub nom. Smith v. Murray, 477 U.S. 527 (1986). While
the trial transcript indicates a finding by the jury that O'Dell's crime
was "outrageously wanton, vile or inhuman," see Joint Appendix at
2506, the Virginia Supreme Court determined that "the jury did not
base its verdict on the vileness predicate." O'Dell, 364 S.E.2d at 507;
see also Joint Appendix at 337. On that basis, the state court declined
to consider O'Dell's argument that the trial court's instruction on the
vileness predicate was improper, affirming his death sentence on the
basis of the finding of "future dangerousness" alone. O'Dell, 364
S.E.2d at 510. Rejecting the Virginia court's finding at this time
would effectively deprive O'Dell of his right to direct appeal. More-
over, as the Commonwealth admitted at oral argument, "[it] didn't
move to correct" the allegedly erroneous finding, presumably because
any error worked to its benefit. Recalling that "it is not the province
of a federal habeas court to reexamine state-court determinations on
state-law questions," Estelle v. McGuire, 502 U.S. 62, 67-68 (1991),
I accept the finding that O'Dell was convicted based on the future
dangerousness factor only. Given the centrality of parole ineligibility
to that issue, the Commonwealth has not met its burden to prove that
the Simmons violation suffered by O'Dell had no "substantial and
injurious effect or influence in determining the jury's verdict."
O'Neal, 115 S. Ct. at 994. Therefore, the decision of the district court

                    89
to vacate the sentence of death imposed on O'Dell was legally correct
and should be affirmed.

II.

For these reasons, I am convinced that the district court's decision
was correct and should be affirmed in its entirety. To the extent that
the majority opinion fails to do this, I am compelled to dissent there-
from.

I am authorized to state that Judges Hall, Murnaghan, Hamilton,
Michael and Motz join in this concurring and dissenting opinion.

                    90
