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.

ORDER

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 quotation -- 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 repeatedly]" 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 ATTORNEY GENERAL, Richmond, Virginia, for Appellants. Jeffrey M.

Eilender, PAUL, WEISS, RIFKIND, WHARTON & GARRISON,

New York, New York; Patricia M. Schwarzschild, HUNTON & WILLIAMS, Richmond, Virginia; Michele J. Brace, Donald Lee, VIRGINIA 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 Fourteenth 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 Stevens 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 authority was a plurality opinion and a single footnote which three Members

of the Court believed represented an "abandonment" of the due process 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 Schartner'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, containing 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 fellow 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 sodomy. 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 counsel. 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 murder 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 convictions 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 convicted 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 robbery, 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 felony 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 dangerousness 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 considerations 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 particular 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 constitutional 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 judgment). 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 conviction 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 existing at the time the defendant's conviction became final." (first emphasis added)). As the Supreme Court has stated repeatedly, a rule sought

by a habeas petitioner is "new," and thus consideration of the underlying claim barred, unless reasonable jurists considering the petitioner'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 reasonable jurists would have deemed themselves compelled to accept Graham'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 preexisting precedent or whether the "challenge" was "dictated" by such

precedent; it is insufficient that prior decisions "inform, or even control 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 continuing 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 subsequent Penry decision, reasonable jurists at the time of Graham's sentencing `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 sentence 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" doctrine 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 judgment) (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 "dictates 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 ultimately 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 [preexisting] legal standards." 494 U.S. at 417 (Brennan, J., dissenting)

(emphasis added); see also id. at 417-18 ("Put another way, 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 thenprevailing legal standards that the decision could not be defended by any

reasonable jurist." (emphasis added)); West, 505 U.S. at 291 ("[A] federal 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 tribunals, 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 defendants whose trials and appeals conformed to then-existing constitutional 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 making 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 narrowest 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 sentencing 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 sentencing. 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 generality, . . . [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 immunity 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 formulations 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 question is "whether a state court considering [petitioner's] claim at the

time his conviction became final would have felt compelled by existing 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., dissenting) ("[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 separate concurrence: "[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

_________________________________________________________________

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 (quoting 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 (quoting 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 defendant 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 holding of Gardner is the "position taken by those Members who concurred 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 prevented 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 sentencer'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 decision 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 dangerousness 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 information 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 Amendment 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 sentence 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 argument 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 repeatedly 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 sentence, "create[d] the misleading impression that the jury can prevent

the defendant's return to society only by imposing the death sentence," id. at 1010-11, just as Simmons argued that an instruction to

the jury as to his parole ineligibility was required to eliminate the mistaken 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 misunderstanding 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, mistakenly, 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 "satisfies 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 determine.'" 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 requiring an instruction as to parole ineligibility:

The Briggs Instruction may well mislead the jury into

believing that it can eliminate any possibility of commutation 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 permanent removal from society whereas the alternative sentence will not.

 17
Presented with this choice, a jury may impose the death sentence 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 footnote omitted, emphasis added)). Compare Simmons, 114 S. Ct. at

2193 ("In this case, the jury reasonably may have believed that petitioner 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 instructions 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 misapprehension 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 constitutionality 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 general principles do not compel specific rules.

Albanese v. McGinnis, 823 F.Supp. 521, 565-66 (N.D. Ill. 1993) (citations 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 unconstitutional, 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 consider 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 sentence. 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 individualized sentencing determinations or consideration of

mitigating factors, nor does it impermissibly inject an element 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 Governor'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 footnote 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 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 (emphasis added). In that footnote passage in Ramos, the Court even cited "with approval" a Georgia statute

"prohibiting argument as to the possibility of pardon, parole, or clemency," 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 "permitt[ing] [juries] to consider commutation and parole." Id. at 1025 (Marshall, 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 consideration 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 concerning 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. . . . Considerations such as the extent of premeditation, the nature of

the crime, and any prior criminal activity have been considered relevant to the determination of the appropriate sentence. . . . [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 possibility 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 jurisdictions 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 pardon, 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 question 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, however, 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 suggestion 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 Amendment 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, categorical 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 considering 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 reference to the possibility that the defendant might become parole eligible. 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 objectively unreasonable for the 1988 jurist to have understood the passage

as extending to all state laws prohibiting comment on parole, including 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 constitutionalized this very distinction, not a single Justice so much as suggested that the distinction had actually been drawn in Ramos, ten

years earlier. Under these circumstances, to suggest now that the distinction was made then, and that the several states were objectively

unreasonable in not divining it at the time, would be not only demoralizing to the state and lower courts, but also destructive of the principles 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 limited 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 sentencer 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 challenged instructions accurately described the role of the jury under state

law, there is no basis for a Caldwell claim. To establish a Caldwell violation, 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 automatically be reviewed by the state's Supreme Court. The Mississippi

Supreme Court rejected Caldwell's claim that such an argument violated the Eighth Amendment, concluding that, "`[b]y [Ramos'] reasoning, 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 concerning postsentencing procedures." 472 U.S. at 335. Rather, the plurality 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 prosecutor'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 appellate court's review and because it depicted the jury's role in

a way fundamentally at odds with the role that a capital sentencer 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 opinion of the Court, except that part in which Justice Marshall, in what

consequently was only a plurality, discussed Ramos and the appropriateness 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 inaccurate and misleading, and therefore violative of the Eighth Amendment, she disagreed with the plurality's conclusion regarding the

complete irrelevancy to the sentencing decision of information concerning 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 appropriate 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 procedures" 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 concurring 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 providing 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 unreliability" 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 accurately 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 possible discretion; and in Ramos, and again in Caldwell, Justice Marshall 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 mislead 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 process might compel the rule in Simmons. However, the holding, reasoning, 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 conclusion 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 ineligibility 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 compatible -- 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[ ] distin[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 sentencing decision must be made." Saffle, 494 U.S. at 490 (emphasis added)

(citing Skipper, with the following parenthetical: "exclusion of evidence 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 mitigating evidence. There is a simple and logical difference

between rules that govern what factors the jury must be permitted to consider in making its sentencing decision and

rules that govern how the State may guide the jury in considering 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 violate 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 proposed 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 process 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 presentence 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 judgment) ("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 comment 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 incarcerated. 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 circumstances 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 precluded 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 "without 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 inaccurate 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 requirements of the Eighth Amendment, not those of the Due Process Clause.

However, the most natural implication would be that the rebuttal evidence 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 concerning 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 undermined 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 sanctioned by [California v. Ramos], [b]ut neither does Ramos

suggest that the federal Constitution prohibits the giving of

accurate instructions regarding post-sentencing procedures").

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

2.

Indeed, this very distinction between facts and legal power to subsequently 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 sentenced to life imprisonment.

Simmons, 114 S. Ct. at 2200 (O'Connor, J., concurring in the judgment) (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 withholding 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 sentencing 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 commutation 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 prosecution arguments concerning these factors. Not until Simmons itself had

the Court ever held that there was a due process right to rebut prosecution 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 tension 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 dangerousness 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 grudging 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 capitalsentencing 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) indisputably 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., concurring in the judgment) ("[D]espite our general deference to state decisions 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 sentencing determination . . . cannot be reconciled with our well-established

precedents interpreting the Due Process Clause," and that "[t]he principle announced in Gardner [and] reaffirmed in Skipper . . . compels"

this conclusion. Simmons, 114 S. Ct. at 2194 (Blackmun, J.) (emphasis added). However, not only is this dicta, it is merely that of a plurality of the Court. Notably, Justice O'Connor's concurrence in the

judgment, joined by the Chief Justice and Justice Kennedy, and necessary 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 decisions 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 purposes 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 Justice Blackmun used the word "compels" in Simmons, instead of "controlled" 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 postsentencing 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 precedent and stare decisis, it is the tradition to find each decision `inherent' 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 analysis 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 primary 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 sentence 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 argument 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 valuable" opinion because it "concern[s] the legal implications of precisely 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 Virginia 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 consideration. Further, the United States Supreme Court has

expressly left the determination of this question to the individual 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 constitutionally mandated in a capital case. See California v. Ramos,

[463 U.S. 992] (1983) (instruction informing jurors in capital 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 unconstitutional).

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 sentences [including "the possibility of life without parole"] that [petitioner] 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 circumstances 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 eligibility 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 further 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 disagreement 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 arguments 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, considering 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 concluded 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 majority footnote, the latter of which treated the due process holding so dismissively 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 & Williams, 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 discerned it from our precedents. We ask only whether the

result was dictated by past cases, or whether it is "susceptible to debate among reasonable minds."

509 U.S. at 378 (O'Connor, J., dissenting, joined by Blackmun, Stevens, 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 constitutionally permissible, the practice of the several states of forbidding

any argument or instruction to the jury concerning commutation, pardon, 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 criminal 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 status 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 decriminalize[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 procedure' 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 quotations 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 proceeding." Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at 311 (quoting Mackey, 401 U.S. at 693)). And, "[b]ecause we operate from the

premise that such procedures would be so central to an accurate determination of innocence or guilt, . . . it is unlikely that many such components 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 constitutional 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 insufficient by itself to support the death penalty."). Although the Virginia

Supreme Court did state that "the jury did not base its verdict on the vileness 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 Petitioner'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 committing 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 considered 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 innumerable 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 Virginia Supreme Court as untimely on appeal from the state habeas proceeding, 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 trying 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 abovestyled 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 procedural 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 ATTORNEY GENERAL, Richmond, Virginia, for Appellants. Jeffrey M.

Eilender, PAUL, WEISS, RIFKIND, WHARTON & GARRISON,

New York, New York; Patricia M. Schwarzschild, HUNTON & WILLIAMS, Richmond, Virginia; Michele J. Brace, Donald Lee, VIRGINIA 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 "adequate" 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 "regularly followed";19 rather, the district court determined that the distinction 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 ambiguous on the procedure for appeals from the denial of state habeas decisions," 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 [certain issues]" following circuit court's denial of petitioner's writ of

habeas corpus); id. at 21-22 (refusing to consider a claim raised in appellant's brief because it failed to comply with Rule 5:17(c) governing petitions 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 necessary 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 regularly ignored by state courts, see James, 466 U.S. at 346-47, are by definition 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 decision, 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, however, the Supreme Court retained jurisdiction for habeas appeals in capital 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 accordance 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 confirmed on a number of grounds. First, the very title of the rule is "Special 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 amendment [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 subsequent denial of the writ of habeas corpus. This distinction is unmistakable 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 corpus." If the two were identical, the provision of direct Supreme Court

jurisdiction for each would be redundant. Additionally, the assignments of error referenced in Rule 5:22 are those "upon which [counsel] 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 pursuant 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 lawfulness 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 transcribed 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 determine:

 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 defendant.

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 imprisonment 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 penalty 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 conviction 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 consolidation 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 convictions, 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 general 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 dismissal of these claims as untimely constituted a state ground "adequate" 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 inspection, 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 "adequate" to bar federal habeas review.

2.

Although the district court did not agree, J.A. at 288, Justice Blackmun 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 distinguishable," 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 "recognized that the content of admonitions and instructions can overlap,"

had "acknowledged that `sometimes matters more appropriately the subject 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 retroactively 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 establishing a practice in the Virginia Supreme Court of examining 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 voluntary, 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 competent psychiatrist who will conduct an appropriate examination

and assist in . . . the defense.

470 U.S. at 83 (emphasis added). Ake thus says nothing about determining "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 competency determination; he has an M.D. from the University of Chicago

School of Medicine, has completed a psychiatric residency at the Philadelphia 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 intelligently. O'Dell claims that the district court's refusal to replace defense

counsel, with whom O'Dell had a confrontational and distrustful relationship, 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 federal habeas court to assess the relationship between O'Dell and his attorney. 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 judicial 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 consequences 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 credibility 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 proceeding 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 distrust of Ray was not based on objective facts; it was based on pure speculation." 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 education, and "exhibit[ed] tremendous [courtroom] skills," J.A. at 3011,

2406, 3333, defended himself far more ably than many practicing attorneys 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 federal 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 consider 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 constitutional violation has probably resulted in the conviction of one who is

actually innocent." Schlup v. Delo, 115 S. Ct. 851, 867 (1995) (quoting 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. Respondent's Reply Br. at 19. Because none of the procedurally barred constitutional claims prevented the jury from hearing the DNA evidence or any

of the other evidence O'Dell claims proves his innocence, the Commonwealth maintains that they cannot be reviewed regardless of the new evidence.

Prior to Schlup, our circuit did require petitioners to link their exculpatory 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 "assertion 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 constitutional violation "probably" "result" in (Carrier) or "cause" (McCleskey)

the conviction of one actually innocent. See id. at 867. Because we conclude 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 Blackmun 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 evidentiary hearing on the DNA evidence. At that hearing, O'Dell presented the results of DNA tests performed on his blood-soaked

clothing some five years after the crime, in an effort to refute the evidence 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 testimony 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 inconsistent 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 consistent 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 admitted 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 evidence 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 Argument 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 LifeCodes 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 standards of the National Research Council -- described by the Commonwealth'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 laboratory 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 testimony 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 checkered 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 contrary to the evidence, and ignores the hotly contested issue in the testimony. Every expert agreed that the stain on the shirt could be "excluded"

from coming from Schartner, yet the district court characterizes the comparison 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 "inconclusive."

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 probability' 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 applicable 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 dissent 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 second, 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 reasonable 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 convict -- 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 regarding the credibility of testimony it has actually heard are findings subject 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 convict 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 reasonable 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 instructions to remand to the district court, but it did so there only because

that was "the most expeditious procedure" in light of the "factintensive nature of the inquiry, together with the District Court's ability 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 conducted 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 reasonable 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 convenience 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 Schartner 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, supported 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 testimony established that Schartner's wounds were consistent with the

weight and shape of that type of pellet gun, J.A. at 1413-17. Moreover, 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 examining 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 fluids 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 fluids 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 apparently 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 characteristics 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, respectively. 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) bodily 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 Schartner'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 vaginal fluids (and, presumably, he for some reason also asserts, by silent

implication and without evidence, that there are no other bodily secretions 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 spermatozoa, 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 fluids) 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 anything about the murder on television or in the newspaper, J.A. at

1675, 1686, and that he had neither been offered nor received anything 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 probation, 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 population; 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 location, 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 agreeing 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 testimonies 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 (stating conclusively that DNA proved the blood was Schartner's), the

Commonwealth's expert's testimony (stating that the data, even unadjusted 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 (agreeing that band shifting had occurred but arguing that the blood evidence 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 murdered. 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 testimony 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 covered with blood, planning to go suddenly to Florida, having inconsistent 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 earlier 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 reasonable 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 evidence 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 discretion 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-andprejudice requirement," holding that

[a] habeas petitioner's failure to develop a claim in statecourt 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 hearing.

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 district court's decision not to grant him an unrestricted evidentiary hearing.

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 coverup is external to O'Dell, the only "new" evidence he has is the affidavit 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 investigator, 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 (emphasis 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 evidence 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 reputation 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 investigator's claims would have substantially increased the reasons that the

jury had to doubt Watson's credibility and to scrutinize his story carefully.

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 pretrial contacts and negotiations Watson had with the Commonwealth. 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 factual 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 holding 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 district 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 possibility 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 applicability 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 dangerousness is at issue, and state law prohibits the defendant's release on

parole, due process requires that the sentencing jury be informed that

the defendant is parole ineligible." Id. at 2190 (plurality opinion). Justice 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 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 sentencing jury--by either argument 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 indistinguishable from those in Simmons. As in Simmons, the trial court

denied the defendant's request for an instruction on parole ineligibility, 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 criminal 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 defendant's conviction became final.'" Turner v. Williams, 35 F.3d 872,

879 (4th Cir. 1994) (quoting Teague, 489 U.S. at 301 (plurality opinion)), 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 constitutes a new rule:

First, the court must ascertain the date on which the defendant's conviction and sentence became final for Teague purposes. 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 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.

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 determine 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 developments 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 presentence 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 evidence 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 process.).

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 confronted Skipper and Simmons is especially striking. Surely a Constitution 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 incarcerated 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 factually 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 distinction is not meaningful and any deviation from precedent is not reasonable.'") (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 differently. 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 entitles the defendant to inform the capital sentencing jury--by either argument 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 Justice 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 reasonably 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 possibility of parole was merely an accurate statement of a potential sentencing 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 overrule or limit Gardner. Likewise, the Skipper Court did not find it necessary 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 extensively, 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 instruction 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 decision 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 distinguishable. 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

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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 extensively 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 ineligibility for parole. As Justice Blackmun explained, and the Commonwealth 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 prosecution'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).

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penalty on future dangerousness grounds is entitled to rebut that argument 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 application 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 Commonwealth 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' implicating the fundamental fairness and accuracy of the criminal proceeding." 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 argument could be made that when a state undertakes to impose a death sentence solely on the ground that a capital defendant poses a further

danger, "fundamental fairness and the accuracy of the criminal proceeding" demand that he not be precluded from showing that he was, by virtue of the law of that state, parole ineligible.

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C.

Having determined that Simmons applies, I turn now to the Commonwealth'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;

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it can come from defense counsel instead. See Simmons, 114 S. Ct.

at 2200-01 (O'Connor, J., concurring in the judgment). More, however, 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 factor. 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. Moreover, 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

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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 therefrom.

I am authorized to state that Judges Hall, Murnaghan, Hamilton,

Michael and Motz join in this concurring and dissenting opinion.

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