Ramdass v. Angelone - Oral Argument

Argument of David I. Bruck

Chief Justice Rehnquist: We'll hear argument next in No. 96-7000, Bobby Lee Ramdass v. Ronald Angelone.

Mr. Bruck.

Mr. Bruck: Mr. Chief Justice, and may it please the Court:

In Simmons v. South Carolina, this Court held that a capital defendant may rebut the State's allegation of future dangerousness by showing, if it is so, that he could never be paroled from prison on a life sentence if the jury gave him a life sentence.

Immediately after deciding Simmons, this Court reversed this case and remanded it to the Virginia Supreme Court for reconsideration in light of Simmons.

The issue now presented is whether the Virginia Supreme Court erred when it effectively engrafted onto this Court's holding in Simmons an additional requirement that, in order to come within the ambit of Simmons, a defendant must not only have no possibility under State law of being released on parole throughout his entire lifetime, but also that that ineligibility have been formally declared on the day of his capital sentence.

Now...

Chief Justice Rehnquist: Well, you say the... the court engrafted that onto Simmons.

But I... I thought that Simmons had simply spoken in terms of eligibility for parole under State law.

Mr. Bruck: Yes, but it... it looked at... it implicitly looked at all of State law and not...

Chief Justice Rehnquist: Well, how can you... how can you say it implicitly looked at all of State law?

Mr. Bruck: Parole eligibility under Simmons means that there is no possibility of parole absent... and the Court looked at remote... what it described... the plurality described as hypothetical possibilities, some of which would have...

Chief Justice Rehnquist: Well, but... but the plurality is not the controlling opinion in that case.

Mr. Bruck: Yes, but the concurrence necessarily had to accept... in order to reach the same result, had to accept the plurality's characterization of parole ineligibility as not including remote hypothetical possibilities.

And it listed such things as commutation, which can lead to parole eligibility and release on parole, clemency which can have the same, and also a change of law.

In other words, it looked to State law...

Chief Justice Rehnquist: When you say... now, tell me again.

When you say it, what are you referring to?

The plurality opinion?

Mr. Bruck: The plurality made this explicit, but the concurring opinion of Justice O'Connor, which created the majority in Simmons, could not have taken any other view because if that was correct, then it would not be... if... if the plurality opinion as to what constituted ineligibility was not the view of the Court, then Simmons... the holding of Simmons as expressed by the concurring opinion could not have been handed down because it would not be possible to say, given these remote hypothetical possibilities in the future, that Mr. Simmons himself was truly ineligible for parole.

Justice O'Connor: Well, this is something slightly different than that, of course.

It's not a remote hypothetical possibility at all, but rather an expected entry of a judgment, is it not?

Mr. Bruck: Yes, but it is...

Justice O'Connor: And... and is that a ministerial act, or... or what was to take place here?

Is it a... something that might well not have occurred...

Mr. Bruck: No.

Justice O'Connor: the entry of the judgment?

Mr. Bruck: No.

Whether we call it ministerial or whether we simply acknowledge that it was inexorable really makes no difference.

It was going to happen.

The jury's verdict on this, what would have been the last strike, had been handed down.

He had been found guilty.

All motions to... to strike the evidence, that is, for directed verdict, judgment NOV, in effect, had been already denied and, under Virginia law, could not be renewed.

The sentencing was 19 days away.

Now, the... interestingly, the State has never, until its brief in this Court, ever identified something, anything, that might have happened in reality to... to block the entry of that judgment and thus...

Justice O'Connor: Now, the defense counsel did tell and argue to the jury...

Mr. Bruck: Yes.

Justice O'Connor: did he not...

Mr. Bruck: He did.

Justice O'Connor: that this person would never, as a practical matter, get out, if he lived to be 120?

Mr. Bruck: Yes, but Virginia law prohibited him from giving the most important aspect of that, which was that these long terms of years could not be reduced by parole, and the jury spotted the omission.

And we know that.

We don't have to speculate about that because they came out and said, if we give him life, is there any possibility of parole?

Now, this is the Simmons question.

Recall that Simmons is a right of rebuttal.

It is not a right to have the defendant's technical legal status on the day of his sentencing hearing exhibited to the jury.

It is a right to rebut an issue that the State brings into the case in... under Virginia law.

And under Virginia law, it was joined much more vigorously than it ever was in Simmons.

In Simmons, it was a non-statutory factor that arguably was present in the prosecutor's jury argument.

Here it was the entire legal basis for the State's request for the death penalty.

Justice Scalia: Mr. Bruck, in this case you say, you know, it's pretty clear that it would have... in the next case it won't be quite so clear that... you know, that... that he will get the third... the third strike which will render it impossible for him to be paroled.

And the next case will be a little less clear than that.

Frankly, I... I don't know where to stop, short of the bright line that's urged by your opponents in this case, which is at the time the sentence in this case was pronounced, could you say it was the State law that this person could not be paroled?

And you could not say it at the time that this... that this jury was sitting.

Mr. Bruck: But we do say that because what Virginia failed to do is to look not at the single statute, but at the entire relevant body of State law which includes the provisions of State law that I was citing a moment ago to Justice O'Connor.

Chief Justice Rehnquist: Well, shouldn't we look to the Virginia Supreme Court for that decision as to... I mean, are you saying that the State supreme court in deciding a question of whether someone was parole eligible made a mistake of State law?

Mr. Bruck: No.

We should definitely...

Chief Justice Rehnquist: What are you saying?

Mr. Bruck: look to the Virginia law if the State gives us the law and if the State looks at the relevant State law.

But that is what Virginia failed to do.

They looked not at the issue... in effect, the issue that they had to address...

Chief Justice Rehnquist: Well...

Mr. Bruck: I'm sorry.

Chief Justice Rehnquist: Well, you... you concede, don't you, that under the law of Virginia, this person was not eligible for parole at the... at the critical... or was eligible for parole at... at the critical point?

Mr. Bruck: We concede that... that under Virginia law, his ineligibility had not yet been formally declared, but when one takes into consideration the other provisions of Virginia law, we by no means concede that there was any possibility of his ever being paroled.

And that is the question in rebuttal that... that it was so crucial in this case and that Simmons recognized what the... a defendant has a due process right to have the jury know about.

Justice Souter: Well, you're saying... I guess you're saying... that the question of what is a sufficient certainty or a sufficient probability, if you will, that there will be no parole is a question of Federal law.

That's a question of what Simmons means, and Simmons was a constitutional decision.

Mr. Bruck: Yes, although...

Justice Souter: So, Virginia can say, yes, in this sense the... the ineligibility is yet to be determined because a decree has not been entered.

But I think you're saying the question before us, the Simmons question is, is it certain to a sufficient degree of probability, however we may want to articulate that, for Simmons purposes, that he will not, at some relevant future time, be parole eligible and that's a question of Federal law?

Mr. Bruck: That's correct.

Now, that is certainly a... a question that is... that is... that arises from State law, but I think it's tremendously important in this case that the Virginia... it... we do not disagree with an answer from the Virginia Supreme Court that we don't like.

Virginia never addressed that question.

And the Commonwealth now says that that question has nothing to do with Simmons, that the State court was under no obligation, in effect, to... to say what the correct answer to the jury's question was, and that has nothing to do with Simmons.

Simmons...

Justice O'Connor: Well, Justice Scalia has raised a question which I think is one that should be of concern, and that is, where do you draw the line?

Where is the line drawn?

And if we were to agree with you that in substance it was, in effect, just a ministerial act that remained and therefore this man was parole ineligible, what about the next case where, as a practical matter, the defendant wouldn't be parole eligible for 80 years?

Must that be given also to the jury in an appropriate case?

Mr. Bruck: If... well, Simmons of course said lifetime.

And it would arguably, I think, be an extension of Simmons to... to change that.

And of course, we cannot extend Simmons in habeas and I recognize that.

Justice O'Connor: So, you would concede...

Mr. Bruck: Yes.

Justice O'Connor: that that kind of hypothetical...

Mr. Bruck: Yes.

Justice O'Connor: is ruled out by Simmons...

Mr. Bruck: Yes.

Justice O'Connor: that to do that would require an extension.

Mr. Bruck: I do concede that.

Justice O'Connor: But you think that you fall within Simmons, properly understood, without extending it in this case.

Mr. Bruck: Yes.

Yes, we absolutely believe that.

Recalling of course...

Justice Ginsburg: May I go back to with the... the question... one of the things I believe that I said in Simmons, it doesn't necessarily have to be the judge, if the lawyer can bring it out.

And here the lawyer told the jury.

But we know that the jury had a question on that question.

They were deliberating for what?

3 hours?

And they came out and said, if defendant is given life, is there a possibility of parole at some time before his natural death?

And that's the question that the lawyer had wanted to answer before, and... but he couldn't under Virginia law.

Mr. Bruck: Precisely.

Precisely.

Justice Ginsburg: So... so, he couldn't do what Simmons said a lawyer could do and then the judge doesn't need to do it.

Virginia law prohibited the lawyer from doing that.

Mr. Bruck: That is exactly correct.

And...

Justice Scalia: But it makes no difference if the answer was... was no, he would not be ineligible for parole.

Mr. Bruck: But that was not the answer under Virginia law.

Justice Scalia: Well, you ultimately have to come back to that.

You ultimately have to come back to showing that that was not the answer.

Mr. Bruck: And I think that's very clear.

I mean, the State has...

Justice Ginsburg: May I... this is a jury that's not composed of lawyers.

Their question was... didn't say is this person eligible for control.

They asked is there a possibility of parole at some time before his natural death.

They were asking is there any chance he's going to get out.

Mr. Bruck: Exactly.

Exactly.

And that is the question with which Simmons is concerned.

That's why I say... and it is clearly established...

Justice Scalia: Is that what Simmons... it's not a matter of law.

It's just, you know, what are the odds...

Mr. Bruck: No.

Justice Scalia: if... if it's really a thousand to one even though there's a... you know, a small possibility under State law?

Is that Simmons said?

Mr. Bruck: No.

It... it arises...

Justice Scalia: It doesn't have to be absolute impossibility under State law?

Mr. Bruck: Yes, yes, that's correct, with the exception of remote hypothetical possibilities.

And in Simmons...

Justice Scalia: Oh, I see.

So, it's not absolute.

It's... it's...

Mr. Bruck: Nothing is absolute except death.

Justice Scalia: Well, no.

Justice Ginsburg: Taxes.

Justice Scalia: I think whether under current... whether under current Virginia law he will be ever eligible for parole can be absolutely answered yes or no.

Chief Justice Rehnquist: Then it would be a much easier rule to apply than the one you...

Mr. Bruck: But it would not apply the rule in Simmons.

It would change and constrict the rule in Simmons.

And the best proof of that is the fact of Simmons itself because if Virginia was correct that the rule of Simmons only can be called upon when State law has already affixed the stamp of parole ineligibility to a defendant, then Simmons would have lost the case.

And the reason for that, as the State pointed out in their brief in Simmons, is that under South Carolina law... and there was State case law, the State against McKay, State against Torrence, making this very clear, that in South Carolina, the decision as to whether or not the two strikes and you're out statute that was involved in Simmons prohibits parole is made not by the sentencing court.

In fact, it may not be made by the sentencing court.

It is made after conviction by the parole board.

And the court may not make that decision.

And that was one of the reasons why South Carolina created the rule of no comment that was partially invalidated in Simmons.

Justice Scalia: That just says that the court can't make the decision.

It doesn't say what the decision had to be.

The decision by the parole board had to be that he is ineligible.

Justice Stevens: Yes, but your point is the decision had not yet been made.

This isn't his case.

Mr. Bruck: The decision had not yet been made.

That's correct.

Justice Stevens: By... by the authority who had the authority to make the decision.

Mr. Bruck: And had the Attorney General of South Carolina taken the view that the Commonwealth takes now, they would have made exactly the same argument and said, well, there are statutory exceptions.

Perhaps the parole board... there's no South Carolina case construing these exceptions to the two strikes and you're out rule.

We don't know that the South Carolina parole board might not have said that his priors were part of a continuing course of conduct, takes him out of the rule.

And all kinds of things could happen.

Lightning might strike, and that in effect is Virginia's argument here, that lightning might strike.

Justice Scalia: The difference is there he was in the rule.

All of the factors that had to occur before the parole board decided the case had occurred, and here something has not occurred which is essential to the judgment that you're not parolable, namely that you've been convicted three times.

Mr. Bruck: Justice Scalia...

Justice Scalia: That hadn't occurred.

Mr. Bruck: everything in Simmons had not occurred either because under South Carolina law, which is different than Virginia's, the parole board has to make a factual determination.

Now, it's true that the antecedent...

Justice Scalia: That's just the determination.

Sure, the determination hadn't been made, but all of the factors that bear upon that determination had occurred.

And here all of the factors that... that bear upon the determination you want made had not occurred.

Mr. Bruck: The only factor that remained... I... I don't believe it's a real distinction because... because of the difference between South Carolina law... but the... and... and Virginia.

But the only factor that remained here was that 19 days hence judgment would be entered on this armed robbery conviction.

Now, what... what is so revealing about this... and recalling, of course, that we're dealing with the right of rebuttal.

The State says beyond a reasonable doubt, jurors, will he commit acts of violence in the future... not will he be a dangerous person.

That's not the sentencing question.

It's will he commit acts of violence in the future that will... that will... or that would pose a substantial threat to society.

Now, that is the issue that the State joined in this case, and under Simmons, he was allowed to give the critical information that he was... whatever threat he might pose, was going to be in prison.

Now, the State, as I say, has never offered a suggestion, just as the Virginia Supreme Court certainly offered no suggestion, of how on the level of reality this ineligibility could... could fail to become final.

But finally in the brief, they do make two suggestions, and the suggestions show why Virginia has been so reticent about engaging this on the level of reality up till now because both suggestions... one is that the prosecutor in the other case might decide to null pros the case after the jury's guilty verdict, and the other suggestion is that the judge might whimsically decide to dismiss it.

Now, this I think can only be described as unlawful behavior or certainly arbitrary behavior, and that cannot be the foundation for a finding that there was... that the answer to the jury's question in this case, the Simmons question, was yes.

The answer to the jury's question was no.

Now, it is true that lightning might strike, but it was true in Simmons.

And the Simmons plurality listed some of the ways in which lightning...

Justice Ginsburg: Mr. Bruck, what about the answer is... you're asking us to draw the line where in... in practical reality we know that this person is going to get judgment entered on the conviction.

But suppose it's just that somebody has pled guilty to a qualifying... a crime that would qualify for a strike, hasn't yet been sentenced.

Mr. Bruck: Exactly the same thing would apply.

In fact, Simmons itself was based on guilty pleas.

The... the guilty...

Justice Ginsburg: But in Simmons there was the... the adjudication.

I'm... I'm taking this case one step back from where we are in the Domino Pizza case.

So, the... the... it's not just that the... that all post-trial motions have been made and that nothing... nothing was wanting except the judge's signature on the judgment.

But there's just been a guilty plea.

There's been no sentencing.

Mr. Bruck: A guilty plea is at least conclusive as a jury's verdict.

It's an admission of everything necessary to support the judgment.

In the absence of any reason to doubt the validity of that guilty plea, we have the same issue.

But of course...

Justice Souter: Well, I take it you would accept a reasonable doubt standard.

Is there any reasonable doubt that this person will... will be parole eligible at, you know, some future time?

Mr. Bruck: That would be... and... and I think that's a nice way of restating the holding of Simmons in...

Justice Scalia: What if he's only been indicted for the third crime, but the... the evidence is overwhelming?

Mr. Bruck: Simmons does not apply.

Justice Scalia: Simmons... why not?

I mean, chances are virtually certain he's going to be convicted.

Mr. Bruck: I...

Justice Scalia: But you say Simmons would apply if he had already confessed to that third crime even though he hasn't yet... what if he has confessed to it?

Mr. Bruck: I'm sorry?

Justice Scalia: What if he has confessed to the third crime?

Mr. Bruck: If... I do not believe that Simmons could be read to extend that far without extending it.

Justice Scalia: Why not?

I mean, as you say, if he's confessed, he's going to be convicted.

Mr. Bruck: We don't even know if it's going to be prosecuted.

But this is a situation where a jury's verdict, or in the hypothetical a guilty plea, has been rendered, and that puts this in a different... it is always possible, of course, to imagine...

Justice Scalia: I know, and I don't want to go nuts trying to figure out how far down the line we're... we're going to carry this.

Chief Justice Rehnquist: Is the issue of reasonable doubt, as you've now phrased the thing... is that... that submitted to the jury?

Mr. Bruck: No.

This is... this is a question of law, and in the vast majority of cases, there will be no doubt whatsoever.

Indeed, this issue can no longer arise under Virginia law.

Chief Justice Rehnquist: the issue of law.

Ordinarily you don't speak of an issue of law as being decided on a basis of beyond a reasonable doubt.

Mr. Bruck: Well, we did not use that term in our... in our brief.

We took...

Chief Justice Rehnquist: But I thought you agreed with Justice Souter.

Mr. Bruck: Well, I... I think that is... that is one way of looking at it.

The question is any possibility, excepting remote hypothetical... remote hypothetical possibilities.

Justice Souter: Why don't... why don't we say that the determination is a determination which depends both on law and on fact?

Mr. Bruck: It does.

Justice Souter: And in making that next determination, we require a very high standard of probability?

Mr. Bruck: I... I would be quite comfortable with that.

Finally, before I sit down, I... I would just like to say that this... this would be a different case had Virginia engaged that analysis, but they did not.

A State court's determination... a State charges with us arguing about State law.

That's not right at all.

Had Virginia asked that question, the Simmons question, in effect the jury's question, and answered it based on State law, it would be a very unusual case in which a Federal court could go behind that.

It would really require I think a showing that the State court's answer was in some sense a deliberate evasion of the... of the Federal right.

But Virginia did not address, let alone answer, that question.

And that is why the decision here is contrary to Simmons because that is the... the question in Simmons.

If I may, I'd like to reserve...

Justice Kennedy: Just one... one question.

The... the question presented to us and the State's submission do not quarrel with the fact that you... or your... your... the petitioner's counsel at the trial submitted a suggestion... suggested response to the jury's question that, it... it seems to me, almost takes away your argument in this case.

Mr. Bruck: Well, let... let us recall that he was working under the strictures of Virginia law, which were absolutely settled.

He was... he was floundering trying to fashion something...

Justice Kennedy: And it was... and it was pre-Simmons.

Mr. Bruck: And it was pre-Simmons.

Justice Kennedy: Still, it... it seems to me the... the answer that the... that the trial counsel suggested contradicts most of the arguments you're making here.

Mr. Bruck: He was halfway through, thinking on his feet about how he could fashion something that wouldn't contradict Virginia law, which is contrary to Simmons.

Justice Kennedy: I understand.

But the point is, it seems to me, not very well preserved in the record.

Mr. Bruck: Of course, the Virginia Supreme Court did not, in any sense, base its decision on that, but reached the merits.

If I may.

Argument of Katherine P. Baldwin

Chief Justice Rehnquist: Very well, Mr. Bruck.

Ms. Baldwin, we'll hear from you.

Mr. Baldwin: Mr. Chief Justice, and may it please the Court:

The question before the Court is not whether the Virginia Supreme Court erred, as was stated this morning.

The question is not even whether Ramdass' claim could possibly fall within the ambit of the sentence.

The only question before the Court is whether, under 2254(d), the Virginia Supreme Court's decision was an unreasonable application of clearly established law.

So, unless Ramdass' claim of functional review of parole ineligibility is somehow clearly established Federal law, unless in other words, it falls within the four corners of Simmons, then he is not entitled to relief in this collateral case.

And that's... that's an important distinction here.

He cannot meet that requirement for several reasons.

First of all, look at Simmons.

In the four corners of Simmons, nowhere in any way, shape, or form, implicitly or explicitly, is this functional view of parole eligibility voiced or discussed.

Justice Souter: In this connection, would you comment on... on your brother's argument that this case is like Simmons because in neither case was there a decree in so many words by a court that the individual was parole ineligible?

In Simmons, the... I guess the parole board had... had never come to that conclusion, and in this case the... the judgment had not been entered in the third case.

So, he said it's on par with Simmons.

Would you comment on that?

Mr. Baldwin: Justice Souter, the reason why we can't even consider that argument under 2254(d) is because it's not contained in Simmons.

That argument has been gleaned from the briefs that were... that were submitted by South Carolina and by the transcript of the oral argument in the case.

Nowhere in the case...

Justice Souter: Well, but there was... there was no... I think maybe he would say, even... even accepting your response, there's no... there's no statement in Simmons to the effect that there had been an entry of... of a... a kind of definitive order.

And so, if one wasn't required in Simmons, wasn't... one isn't required here.

Mr. Baldwin: I think a reasonable jurist and... and objectively reasonably could have looked at the opinion in Simmons and determined, because of the tremendous repetition of the phrase, ineligible under State law, almost... the word parole ineligible was almost never standing alone.

It's always coupled, multiple times, in... in both the concurring opinion of Justice O'Connor and in the plurality opinion, over and over of ineligible under State law.

And that can only have one meaning in Virginia, and that means upon entry of a judgment order.

Nowhere else...

Justice Souter: But the question... the question is what it... what that phrase means as a matter of Federal law.

And... and his argument is that it... it can't mean that a... a definitive decree, stating in exactly those words, parole ineligible, must have been entered because, number one, the Simmons opinion didn't say so, and number two... I think this is correct... the record in Simmons indicated that there had been no such decree entered.

Mr. Baldwin: Correct, but we cannot...

Justice Souter: But that's... but that's a question of Federal law.

Mr. Baldwin: Well, we cannot... first of all, we cannot impute anything in the briefs or the oral argument to the Virginia Supreme Court.

And the determination under 2254(d) is whether the Virginia Supreme Court's decision was a reasonable application of Simmons.

So, right there, we cannot look at what... unless this Court is going to rule, which I don't think it possibly could, that a... that a State supreme court not only is now responsible for reasonably applying the opinion from this Court, but also must go behind that to determine what implicitly the Court meant by reference to the briefs, et cetera.

Justice O'Connor: Let... let me ask you this.

For example, suppose the judge on the third case here had taken the order form home in order to sign it.

He's overworked and had a lot to do, and he takes a lot of homework home.

He signed it but failed to get it back to the clerk or got it back to his clerk 2 days later, and so it wasn't formally entered in the docket by the clerk, by the stamp until after Ramdass had been sentenced.

Now, covered by Simmons or not?

Mr. Baldwin: Not covered by Simmons, Justice O'Connor?

Justice O'Connor: Why not?

Mr. Baldwin: Because in that case, I think it would present a different case, one in which once presumably the defendant found out about this, it would be his duty to bring that to the attention of a court.

And if some error of State law occurred... for instance, let's... let's assume that actually the order had been entered on that third case and the judge in Ramdass' capital case didn't even know about it.

Let's assume that there was a clear error of State law.

That would be the defendant's duty to bring that to the attention of the court, take it up on appeal and get reversed.

Justice Breyer: What happens if it's subject to appeal?

Mr. Baldwin: I don't understand the question.

Justice Breyer: I mean, we have Mr. Simmons back, and Mr. Simmons says, you know, there's something you didn't know about, although I've been convicted and the conviction had been entered, it could have been reversed on appeal.

He doesn't say that.

The State says it.

Mr. Baldwin: It would...

Justice Breyer: Now does he get... we're going to execute him now?

Mr. Baldwin: It would depend on what the State law is on the...

Justice Breyer: Well, I mean, all right, fine.

Let's suppose the State said the following.

In our State... and here... here's how it goes.

Right?

The prosecutor says, this is a very dangerous person.

You better execute him.

The defendant says, judge, I would like to tell the jury that I happen to be in jail forever.

I can't get out on parole.

And the rule is... the rule is he has a right to tell him that if, under State law, he's ineligible for parole.

All right?

Well, why isn't he ineligible for parole?

You say, well, because although the jury had convicted him, the judge hadn't yet done the ministerial thing of putting the order down.

Well, I say all the time people convict somebody.

They may be ineligible for parole.

Maybe there would be an appeal.

Maybe he would be reversed on appeal.

Maybe they'd be... maybe they would decide the prisons were overcrowded, let them all out.

Maybe they would decide... maybe there would be a war and everybody would get an amnesty.

Now... now, suppose a State said, by the way, in our State we consider a person ineligible for parole only when it's really definite, only when we can be really certain that they won't be reversed on appeal, that there won't be a general amnesty given by the governor, that there will not be a declaration of war, and so we have to get everybody out to fight in the armed services.

In our State, we consider all those things have to happen.

Should a Federal court say, oh, that's very different from Simmons?

Mr. Baldwin: Well, Justice Breyer, is your question that under that particular State's law, those are factors that go into the State's determination...

Justice Breyer: I'm just saying...

Mr. Baldwin: of parole eligibility?

Justice Breyer: on your... on your view of it... you know, what we're imagining is ridiculous possibilities.

In fact, the possibility of reversal on appeal is a lot less ridiculous than the possibility that this judge wouldn't enter the order.

But what we're considering are fairly ridiculous possibilities, and a State court that happens to announce under our State law a person is really ineligible for parole only when all those ridiculous possibilities are negative.

I'm saying I think... and your view is if the State court says that, what?

Mr. Baldwin: If the State law is... and... and, Justice Breyer, I disagree that the entry of a judgment order on conviction is anything technical or... or formalistic...

Justice Breyer: That would be a different question.

Fine.

That would be a different question.

Mr. Baldwin: whatsoever.

The Fourth Circuit rule... and I... and I think it's correct, that the entry of a judgment order making someone... divesting someone of eligibility for parole is not a trivial matter.

It's a very... what the Fourth Circuit termed an age-old rule, that before...

Justice Breyer: You know, but what I'm doing is I'm not being clear myself.

You see, I'm trying to find out what your argument is.

Is your argument that if a State court were to say, in our State you're not... the law is identical to what it is in Virginia but for one thing.

The State court announces, we consider you ineligible for parole only when all appeals have been terminated.

We consider you ineligible for parole only when the Governor announces he's not going to give you a pardon, et cetera.

What's your view of how that works?

Mr. Baldwin: My view is that under the laws that exist today, under the four corners of Simmons, that if he is ineligible under State law, he gets the Simmons instruction, and if he is eligible under State law, he does not.

Now, if this Court wants to extend that due process right by some extra considerations of other procedures or taking into account some other State's procedures and wants to expand on Simmons, then it must do so in that case on direct appeal, not collateral review.

Justice Breyer: So... so, in your... in your view, if the State court were to say, we consider our people ineligible for parole only when the Governor announces he's not going to give a pardon.

In your view, that person would not qualify for the instruction under Simmons.

Mr. Baldwin: Under... currently under Simmons, yes, Justice Breyer.

And of course, there's... to my knowledge there's no such State that has that type of parole law.

Justice Breyer: If I... if I believe that you were wrong about that, would you lose?

Mr. Baldwin: Wrong about my interpretation.

Justice Breyer: If I believed that Simmons... that would be so far from what Simmons intended, that... that...

Mr. Baldwin: No, I would not lose in this case because my case does not present those facts.

My case... I don't think under any interpretation of 2254(d), it could be said that the Virginia Supreme Court's interpretation... application of Simmons was unreasonable, objectively or otherwise.

Justice O'Connor: Well, except for the fact that the entry of the judgment may have been a purely ministerial thing.

Mr. Baldwin: It...

Justice O'Connor: It was not... it was not in any way a situation where it wouldn't be entered in the...

Mr. Baldwin: Justice O'Connor, it was not.

Ramdass' argument on that point is... is completely wrong on Virginia law.

Justice O'Connor: Tell us why.

Mr. Baldwin: He has conceded that... that the authority in Virginia gives to a circuit court the authority to vacate or set aside a jury's conviction before entry of judgment.

He has conceded that point.

Justice O'Connor: Sua sponte... sua sponte the judge can do that?

Mr. Baldwin: He certainly may, yes, Your Honor.

It's... it's...

Justice Souter: You have... you have given us in your brief a couple of factual scenarios on which the judge might do that.

Mr. Baldwin: And there are many more, Justice Souter.

Justice Souter: And... no, but there may be many more, but I'd like you to comment on what seems to me the just total lack of reality of the suggestions you make.

The judge... one of your examples was, well, the judge in that case might say, look at this poor guy, he's just been convicted of murder, we... he shouldn't have so many convictions against him.

So, I'm going to vacate the judgment here.

I mean, that's not a real world example.

And if... if that's the basis upon which you think something might happen other than the entry of judgment, then I... I just don't think that you've got a realistic argument.

Am I missing something?

Mr. Baldwin: Justice Souter, I believe that it's... it's Virginia Supreme Court 3A: 15 gives a circuit court unfettered authority to set aside the judgment

Now...

Justice Souter: Have you ever known of a circuit court that said, gee, I feel so sorry for this fellow because he's got too many convictions against him, I think I won't enter judgment in this most recent one?

Do you have an example?

Mr. Baldwin: I... I think that absolutely what could occur in that sentencing...

Justice Souter: My question was whether you had an example.

Do they do that in Virginia?

Mr. Baldwin: They certainly do.

Justice Souter: They do?

You have...

Mr. Baldwin: Now, it may not be...

Justice Souter: you have examples in Virginia in which the judge says, too many convictions...

Mr. Baldwin: I do not have case examples, Justice Souter.

Justice Souter: I won't enter judgment?

Mr. Baldwin: I think that what could go into a judge's thinking is when presented with some error of law that occurred at trial... and we have... this record in this case does not show what Ramdass was prepared to argue at that sentencing hearing in the Domino's Pizza case.

But he could have...

Justice Ginsburg: the judge had turned down all post-trial motions...

Mr. Baldwin: No.

Justice Ginsburg: No?

Mr. Baldwin: No.

He had... what he had rejected... and this is what has been kind of unclear from Ramdass' argument.

What he had rejected were your typical motions to strike on the basis of insufficiency of the evidence.

Justice Ginsburg: Have there been the equivalent of a... whatever they call it these days... a directed verdict, NOV?

Mr. Baldwin: No.

He was... he was set for a sentencing hearing, which meant at that hearing he could have filed a motion to set aside because of some legal error that occurred at trial.

A judge and a prosecutor both could very well in that case, after he had already had a death sentenced entered, decide that they do not want to risk having some bad legal ruling go up on appeal.

That... that's a perfectly... that could happen anytime.

Justice Ginsburg: But the... the legal rulings at the trial itself...

Mr. Baldwin: Correct.

Justice Ginsburg: those all would have had to have been made, wouldn't they?

Mr. Baldwin: No.

No, Justice Ginsburg.

Justice Ginsburg: What...

Mr. Baldwin: In the... in the sentencing hearing, he had a right under rule 3A: 15 to file a motion to set aside

Justice Ginsburg: Even though he...

Mr. Baldwin: for legal error.

Justice Ginsburg: even though he had made... didn't he make a motion...

Mr. Baldwin: To my knowledge, the only thing that was...

Justice Ginsburg: Did he make a motion post-verdict?

Mr. Baldwin: I believe not at the sentencing hearing.

I believe he made...

Justice Ginsburg: No.

I'm talking about what...

Mr. Baldwin: on sufficiency of the evidence, as far as I know.

Justice Ginsburg: Yes.

Mr. Baldwin: But the record doesn't show what other possible legal errors there are.

We just don't know what he could have done at that hearing.

We have no idea.

Justice Souter: No, but I suppose by a parity of reasoning then, that the... that the parole ineligibility wouldn't have been certain upon entry of judgment by the trial court because he could always appeal.

An appeal could always reverse it.

I meant there's... there's no end...

Mr. Baldwin: But that's not the rule in Virginia, Justice Souter.

Justice Souter: Pardon me?

Mr. Baldwin: That's not the rule in Virginia.

The rule in Virginia, under the Virginia Supreme Court's ruling, is once the conviction order is entered, at that point then the Department of Corrections can consider that conviction.

Justice Souter: No.

But our question is the Simmons question.

The Federal law question is, is the ineligibility certain to a very high degree.

And... and you're saying, no, it's not because under Virginia law, entry might not have been entered... a judgment might not have been entered on this conviction, and the reason might be because the judge felt sorry for him or for some other reason or...

Mr. Baldwin: Many other reasons.

Justice Souter: or because he made a... a motion which we don't now have before us, a motion that might have led the judge to do that.

And... and my point is, if that possibility is sufficient for Simmons purposes to say that his parole ineligibility is uncertain, then the possibility of his appeal and some success on appeal should equally lead to an uncertainty that would bar the application of Simmons.

Why... why isn't that line of reasoning sound?

Mr. Baldwin: Because that's not what the law in Virginia is on parole ineligibility.

Justice Souter: I... I'm suggesting the... the law of the United States under Simmons, and you're saying that the... the possibility that judgment may not be entered makes the ineligibility point too uncertain to apply Simmons.

And all I'm saying is, if that is sound, then the possibility of an appeal in Virginia, upon which he might get relief, presumably also makes ineligibility too uncertain to apply Simmons.

Isn't that right?

Mr. Baldwin: No, I think that's not right because Simmons doesn't speak in terms, anywhere in the opinion, of... of some separate Federal issue apart from what State... State law defines as ineligible.

Justice Scalia: Well, never mind even State law.

Even if we were doing it on the basis of Federal law looking at Virginia, if the conviction were overturned on appeal, I assume what would happen is that the prior ineligibility for parole, which existed upon the conviction, would be eliminated.

Isn't that right?

Mr. Baldwin: It would be.

Justice Scalia: But it wouldn't retroactively mean that he was not ineligible for parole.

He is ineligible in Virginia from the time of conviction.

Mr. Baldwin: That's correct.

Justice Scalia: And should it be reversed later, he would then be... he would then be eligible.

Mr. Baldwin: That's correct.

Justice Scalia: But he would have been ineligible at the time of this trial.

Justice Stevens: May I ask you a question on this point?

Is it not correct, whether we call it Federal law or State law, if we look at the concurring opinion in Simmons, that if the judge had given an instruction... but as you say, he didn't really have to give... saying that as things look right now, if that judgment is entered, he'll be ineligible for parole.

The prosecutor would have been entirely free to ask the judge to say yes, but that judgment might be set aside on appeal.

It might not be entered.

He might escape.

There might be commutation.

There might be a change in the law, and there might be a pardon.

So, the... that even if the instruction had been given, to the extent that there is this uncertainty in the picture, it... perhaps the prosecutor could easily have cleared that up and said nothing in life is certain because of all these factors.

Mr. Baldwin: That's correct, Justice Stevens, but Simmons does not require the instruction unless he is ineligible.

Justice Stevens: No, but one of the points that's made in Simmons is that the prosecutor has this option of being sure that the information is not misleading.

See, that's what... the main thing we're looking for...

Mr. Baldwin: Correct, if he...

Justice Stevens: is not misleading the jurors.

Mr. Baldwin: If... well, but Simmons tells State courts very clearly, expressly a very narrow exception to the general rule was carved out in Simmons.

Chief Justice Rehnquist: The concurring opinion in Simmons pointed out that this is an exception to the general rule, that you ordinarily don't get into this subject because it can be so confusing to the jury.

Mr. Baldwin: Yes, yes, Mr. Chief Justice.

Justice Stevens: Of course, it also pointed out how unfair it is for the prosecutor to make an argument about future dangerousness and conceal the fact that he's not likely to get out of prison.

It... that argument is also in the concurring opinion.

Mr. Baldwin: Well, I would disagree with that because I think what Simmons expressly says is that's only unfair if he would be ineligible as a matter of State law.

And you have to look at when a State court is reading Simmons, is it reasonable for them to rule and to decide... read Simmons, look at this defendant.

If he was eligible for parole, then Simmons simply doesn't apply.

And there's nothing in Simmons to support this different type of nebulous standard that Ramdass is now proposing.

Justice Breyer: Well, I don't see why... why exactly.

I mean, the... the argument on the... I think would be that... that Simmons says when a person is ineligible for parole...

Mr. Baldwin: As a matter of State law.

Justice Breyer: as a matter of State law, you must tell the jury, let him tell the jury.

Mr. Baldwin: Correct.

Justice Breyer: Well, this person is.

He simply is.

Mr. Baldwin: Well, the Virginia Supreme Court said not.

Justice Breyer: Now... now, but they're not deciding the Federal question.

Mr. Baldwin: I believe...

Justice Breyer: I mean... and Simmons itself... see, it's a Federal question whether he... and... and they're not deciding that Federal question.

And Simmons itself understands that there is some uncertainty as to whether the person really will get out.

The conviction could be reversed on parole.

Mr. Baldwin: That's right.

That's irrelevant.

Justice Breyer: And there's no difference between that kind of uncertainty, like reversal on parole, and the kind of uncertainty that consists of whether the judge will perform a ministerial act.

Now, that's... that's... I'm recasting it because...

Mr. Baldwin: Simmons...

Justice Breyer: I want to get your response to the recasting of it.

Mr. Baldwin: Simmons set... Simmons set a threshold.

It was a very bright line rule for State courts.

And... and I believe that that is... some of the members of the Court this morning have said Ramdass' proposed standard... there's no way... this Court would have to take every case to decide on the facts of that case...

Justice Breyer: Why... why?

Mr. Baldwin: whether beyond a reasonable doubt.

Justice Breyer: Since there... why... why would you?

Suppose you simply said where they're ineligible and they are ineligible where there has been an authoritative determination that they are guilty of the crime.

Mr. Baldwin: Well, this...

Justice Breyer: I mean, that's it.

Mr. Baldwin: This Court may...

Justice Breyer: Clear, bright line, and I don't think anybody could say that there has not been an authoritative determination that he was guilty of the crime that... that led to no parole.

Now...

Mr. Baldwin: This Court may want to say that.

Justice Breyer: Yes.

Mr. Baldwin: But it would have to say that in that case on direct appeal because Simmons doesn't say that.

Justice Breyer: Well, but wouldn't that be implicit in Simmons?

I mean, the issue didn't come up in Simmons as to... I agree with you.

It didn't come up because everyone knew that he was ineligible, but if you were to ask a lawyer what does it mean, they'd say, well, where there has been an authoritative determination, nobody would think that the court of appeals had to decide an appeal that wasn't gotten there.

Everybody would think there has to be some judicial determination.

Mr. Baldwin: But, Justice Breyer, the... the issue is not what is implicit in Simmons under 2254(d).

The issue is was it clearly established, and... and for that matter... and looking at whether it was clearly established or not, even 3 years after Simmons, this Court was debating in Brown v. Texas.

Three members of the Court joined Justice Stevens' statement regarding denial of cert... as to whether Simmons might... should apply to defendants who are eligible for parole after serving...

Justice Breyer: No, no, but that I grant...

Mr. Baldwin: ineligible after serving...

Justice Breyer: is absolutely not decided in Simmons.

Mr. Baldwin: And...

Justice Breyer: It's the question of the authoritative...

Mr. Baldwin: that's... but that's essentially the issue that Ramdass is making now.

I think Simmons should apply to me despite the fact that I am eligible for... that I am eligible for parole as opposed to ineligible for parole.

If that... if that issue was debatable on this...

Justice Breyer: Surely you're not eligible for parole if you haven't been convicted.

I mean, if the judge is going to set aside the jury's conviction, you're not eligible for parole.

Mr. Baldwin: That's correct.

Justice Breyer: Parole doesn't enter into it.

Mr. Baldwin: If that Domino's Pizza case had not been entered... and it may not have been at that time.

We're now looking with hindsight, so we know what happened.

But at that time, no one could say with certainty that would happen.

And if that had not been entered, you can be sure that Ramdass would have been fighting tooth and nail to have been found eligible for parole.

I mean, his argument would have been completely different.

He would not have an argument at all today.

His argument is based upon a misapprehension of State law, and we know that because the Virginia Supreme Court has said it.

The... in Simmons, this Court repeatedly used the phrase, ineligible under State law.

This Court, 3 years after Simmons in Brown v. Texas, was telling State courts it's debatable on the courts still as to pretty much the extent of the Simmons rule as applying to eligibles or ineligibles for parole.

You cannot, therefore, go back and say that the Virginia Supreme Court's decision was in any way objectively unreasonable.

In O'Dell, this Court defined Simmons as that narrow exception carved out of the general rule.

It's a bright line rule.

The Court found under State law and... and Ramdass does not take exception with the State law ruling that he was eligible for parole.

There was... there is nothing in Simmons to say that there is some separate standard.

And in fact, as the Fourth Circuit said... and I think they were correct... anytime we get into a discussion of parole eligibility, it necessarily is going to collapse into a discussion of State law.

It's not like a case where you have, oh, there's some subsidiary State law kind of factual findings and then you make a Federal law determination.

Simmons is uniquely dependent, completely, unless this Court is going to change it and extend it... completely dependent on what State law is.

That's the way Simmons was written.

If the Court doesn't like it and wants to extend it, it needs to do that in a case on direct appeal.

It cannot do it in a collateral case under 2254(d) because you cannot, in this case, look at Simmons, read Simmons, and say that what the Virginia Supreme Court did was unreasonable.

Justice Breyer: Well, of course, that's true.

I mean, you're absolutely right that it's dependent on what State law is.

But is it dependent upon what the State law decides the Federal question to be?

Mr. Baldwin: According to Simmons, the State law determines whether he's eligible or not.

Justice Breyer: That's true, but here was the Virginia court doing anything other than deciding the Federal question of whether, for purposes of Simmons, he is eligible or ineligible for parole?

Mr. Baldwin: I think they're the same.

Under the way that Simmons was written...

Justice Breyer: All right.

Now, do we have to listen to a State court's determination of that Federal question?

Mr. Baldwin: If the Federal... if you're saying the Federal question is whether he's eligible for parole or not, then yes.

The answer is yes because Simmons, as currently written, would give a reasonable jurist reading it that impression.

Justice Scalia: If we're going to say that it's our decision, a Federal decision, whether he's eligible under... whether he's eligible for parole, it would be a very strange way to describe it as saying it depends on whether he's eligible for parole under Virginia law or under South Carolina law.

It seems to me meaningless to say... to say that we're going to refer to South Carolina law, but the answer that South Carolina gives is not necessarily the right answer.

I really don't understand how that argument goes.

Do you understand how that argument goes?

Mr. Baldwin: No, I don't...

Justice Scalia: It depends on Virginia law, but it really doesn't depend on Virginia law.

Unidentified Justice: [Laughter]

Justice Breyer: I was trying...

Mr. Baldwin: I don't understand it.

Justice Breyer: The... the... this is very unusual.

It's very complicated and philosophical in a sense.

It's an unusual case where the legal situation in... in Virginia is totally clear.

There's no disagreement about it.

Mr. Baldwin: Correct.

Justice Breyer: And the only thing that happens in that absolutely agreed upon legal situation is a Virginia court says, we are going to use these words, ineligible for parole, to apply to this situation simply because the judge hasn't yet come in yet.

Now, I'd say that's the Federal question.

Mr. Baldwin: Well...

Justice Breyer: And... and it's...

Mr. Baldwin: I'm not sure what the...

Justice Breyer: that's the Federal question, about whether you should use those words ineligible for parole in respect to Simmons on this absolutely agreed upon legal circumstance in Virginia.

Mr. Baldwin: But I don't see how... how a State court, looking to see whether someone is eligible for parole or not under State law, can do anything else.

I mean, they have to look at their own law...

Justice Breyer: No.

We could easily do it.

Mr. Baldwin: and determine...

Justice Breyer: What you could say is, the matter of Federal law which is clear from Simmons is the following.

Where there has been authoritative determination by the State that the person is ineligible for parole, or convicted of the third crime that makes him ineligible, that's when Simmons cuts in.

Now, I think maybe that's implicit in Simmons and... and you would say...

Mr. Baldwin: Well, I think...

Justice Breyer: no, it isn't.

But one thing I would be certain is I don't think that the State court's answer to that question would get deference from a Federal court.

Mr. Baldwin: Well, then I think the Federal court then would be redetermining State law ineligibility for parole, and that is not contained anywhere in Simmons.

What Ramdass...

Justice Scalia: I guess we could have said in Simmons that the question is whether he is likely to be paroled by... by South Carolina or... or very likely to be paroled by Virginia.

Chief Justice Rehnquist: Beyond a reasonable doubt.

Justice Scalia: Beyond a reasonable doubt.

Mr. Baldwin: Yes.

This Court could have said that.

Justice Scalia: We didn't say that.

We said whether he is eligible for parole under South Carolina...

Mr. Baldwin: That's correct.

Justice Scalia: or Virginia law.

Mr. Baldwin: But what Ramdass' real complaint here is simply that his order of convictions came different than what he wishes they were.

That claim isn't before the Court.

He never preserved that claim.

If he wanted to have preserved that claim, he should have asked for a continuance or asked for something to make him ineligible under State law because that's his real complaint here...

Justice Stevens: May I ask...

Mr. Baldwin: one that was never made.

Justice Stevens: how... is your answer to their argument that the same thing was really true in South Carolina because the parole board hadn't yet made him ineligible for parole, that that's not mentioned in the opinion?

Is that your answer to that argument?

Mr. Baldwin: Well, but you can't impute that certainly to the Virginia Supreme Court reading Simmons because that entire argument...

Justice Stevens: But even though that's part of our holding, our opinion didn't explain that and therefore the State court wasn't on notice.

Mr. Baldwin: Justice Stevens, I don't believe it's in the opinion at all.

Justice Stevens: No, I know it isn't, but it was in the briefs.

Mr. Baldwin: Correct.

Justice Stevens: And so you... but if that fact had been spelled out, do you think Simmons would have been decided differently?

Mr. Baldwin: No, I don't.

Justice Stevens: No.

So, then isn't... isn't it fair to say even though that was the holding and the only unfairness for the Virginia Supreme Court is it wasn't spelled out in the opinion?

Mr. Baldwin: No, no.

Then at least he would have...

Justice Stevens: If they had read the briefs and knew that was a fact, do you think they would have come out the same way in this case?

Mr. Baldwin: If it was... if that was... if his claim of a different standard of reviewing parole eligibility, for whatever reason, because the parole board in South Carolina hadn't yet announced it or...

Justice Stevens: Well, the argument would be the same argument you're making here, that he really was not yet ineligible for parole because the parole board had... had not yet entered the order that made him so.

Mr. Baldwin: I think then at least he'd have some argument here, but he has no argument here because Simmons doesn't say that.

I mean, at least then he might have a basis for his claim.

Justice Stevens: But Simmons decided that.

Simmons decided that.

Mr. Baldwin: To my knowledge...

Justice Stevens: Because that argument was on the table and the Court didn't think it was strong enough even to mention in the opinion and yet rejected it.

Mr. Baldwin: If that's true, if we have to impute that to State courts to go back and read the briefs to see what was rejected, Justice Stevens...

Justice Stevens: Either that or we have to assume that most State courts would react to that argument the same way we reacted to that argument, that it's so obviously frivolous that to wait for that meaningless delay, that that shouldn't change the result.

Mr. Baldwin: Well, I think absent it somewhere in the opinion, you simply can't say that the Virginia Supreme Court unreasonably applied Simmons.

Rebuttal of David I. Bruck

Chief Justice Rehnquist: Thank you, Ms. Baldwin.

Mr. Bruck, you have 7 minutes remaining.

Mr. Bruck: If Your Honor please, really the only point I'd like to respond to is this idea of slippery slope that Virginia advances.

I would suggest that if there is any slippery slope on this case, it is on the other side of the issue.

If... if the... the due process rule, the right of rebuttal rule in Simmons were now to give way to something so constrained by formalism and an arid explication of what State law says parole eligibility means, to the exclusion of the Federal question, if Simmons is to be contracted in Ramdass v. Angelone to mean that, then States that no longer wish to be... to abide by Simmons at all have a road map to opt out of the Simmons principle.

And I think the South Carolina procedure is a perfect way of doing it, to delay the formal declaration, and there could be some sorts of factual determinations, none of which would be in doubt.

There would be no suspense about any of it, but the time had not yet come when the jury wants to know the answer, so you never have to tell them.

Justice Scalia: Maybe we should reformulate Simmons then and say, you know, that issue is whether he is likely or overwhelmingly likely or beyond a reasonable doubt will be paroled by Virginia.

Mr. Bruck: One need not go so far.

Justice Scalia: That... that would solve the problem that you're worried about.

But unfortunately, that isn't what we said in Simmons.

Mr. Bruck: Well, I'm really not worried about it because I don't think that... that this Court will restrict South Carolina in such a way.

Chief Justice Rehnquist: Well, maybe Simmons itself was a mistake.

Mr. Bruck: Well, that leads me to my last point, which is that Simmons has been accepted very comfortably by the States.

In fact, even before Simmons, there were very few State courts that did not go further than what Simmons held was required by due process, and now there are almost none.

Virginia itself no longer has this whole procedure.

They now have eliminated parole for everybody and they tell everybody in every case whether future dangerousness is argued or not.

Yarborough v. Commonwealth.

They have gone beyond Simmons.

So, the... the issue of... of what was a small change in the law at the time of Simmons is no longer controversial.

It is in repose, and I would suggest that it would be most unwise and most unfortunate for this Court to reawaken what was a small controversy 4, 5, 6 years ago and is now no controversy at all.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Bruck.

The case is submitted.