O'Dell v. Netherland

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 mer*1256it, and 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, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (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, 109 S.Ct. 1060, 103 L.Ed.2d 334 (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, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (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 -, 114 S.Ct. 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 plurality 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 -, 114 S.Ct. 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 -, 114 S.Ct. 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, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (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 -, 114 S.Ct. at 2201 (O’Connor, J., concurring).

B.

The Commonwealth concedes that the facts of this case are indistinguishable from *1257those 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. 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, 109 S.Ct. 1060, 108 L.Ed.2d 334 (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, 130 L.Ed.2d 793 (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, 109 S.Ct. at 1070 (plurality opinion)), cert. denied, — U.S. -, 115 S.Ct. 1359, 131 L.Ed.2d 216 (1995). In Caspari v. Bohlen, 510 U.S. 383, 114 S.Ct. 948, 127 L.Ed.2d 236 (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 sen-fence 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 nonre-troactivity principle.

Id. at 390, 114 S.Ct. at 953 (citations omitted) (quoting Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 898, 122 L.Ed.2d 260 (1993), and Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (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, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988). Our task, then, is to determine whether an objectively reasonable jurist in October 1988 would 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, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 *1258L.Ed.2d 1 (1986).5 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, 97 S.Ct. at 1206. 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, 106 S.Ct. at 1671 n. 1, 1672-73. 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, 106 S.Ct. at 1671 n. 1; see also id. at 9, 106 S.Ct. at 1673 (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, 106 S.Ct. at 1671 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, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (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, 112 S.Ct. 1130, 1134-36,117 L.Ed.2d 367 (1992). For “when 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, 112 S.Ct. 2482, 2497, 120 L.Ed.2d 225 (1992) (O’Connor, J., concurring in the judgment)).

The Simmons plurality reached the conclusion that its decision was “compel[ledJ ” by Gardner and Skipper, cases handed down years before O’Dell’s conviction became final. Simmons, 512 U.S. at -, 114 S.Ct. at 2194 (plurality opinion).6 The Supreme Court has

*1259recognized, 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 414,110 S.Ct. at 1217. Although such language is not conclusive, see id at 415, 110 S.Ct. at 1217, it is a factor in assessing whether an objectively reasonable jurist would have predicted a particular decision.

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 refusefd] to inform sentencing juries of this fact.” Simmons, 512 U.S. at -n. 8,114 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, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (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, 103 S.Ct. at 3459-60. As Justice Blackmun noted in Simmons, however, Ramos is not inconsistent with the Gardner/Skipper rule applied in Simmons.7 Id. at -, 114 S.Ct. at 2196. The 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, 103 S.Ct. at 3455. 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, 103 S.Ct. at 3457. In contrast, the Simmons problem occurs where a defendant is prohibited from presenting information necessary to correct a critical misapprehen*1260sion 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 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, 106 S.Ct. 1683, 90 L.Ed.2d 27 (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 construed 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.”

*1261Moreover, “the mere existence of [prior] conflicting authority does not necessarily mean a rule is new.” Wright, 505 U.S. at 304, 112 S.Ct. at 2497 (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, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), that the petitioner’s constitutional claim was not precluded by Teag-ue, despite the Fifth Circuit’s conclusion that its previous decisions rejecting similar claims barred consideration of Peltry'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 Blaekmun 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, 512 U.S. at -, 114 S.Ct. at 2196 (plurality opinion). At bottom, Simmons examines whether a person who is subjected to the death 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, 109 S.Ct. at 1070 (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

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, 507 U.S. 619, 620, 113 S.Ct. 1710, 1712, 123 L.Ed.2d 353 (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, 130 L.Ed.2d 72 (1995), the Supreme Court recently held a petitioner does not carry this burden. O’Neal v. McAninch, — U.S. -, -, 115 S.Ct. *1262992, 994, 130 L.Ed.2d 947 (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 2438. Simmons does hold that a jury’s information about parole eligibility need not come by way of a court’s instruction; it can come from defense counsel instead. See Simmons, 512 U.S. at - -, 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, 103 S.Ct. 2733, 77 L.Ed.2d 235 (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, 103 S.Ct. at 2746; accord Smith v. Procunier, 769 F.2d 170, 173 (4th Cir.1985), aff'd sub nom. Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (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, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (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 — U.S. at -, 115 S.Ct. at 994. Therefore, the decision of the district court to vacate the sentence of *1263death 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.

. Like the majority, I also decline to address the question of the applicability of the Anti-terrorism and Effective Death Penalty Act of 1966 to this case.

. Simmons also raised a claim under the Eighth Amendment, the merits of which the Court’s plurality opinion declined to address. Simmons, 512 U.S. at - n. 4, 114 S.Ct. at 2193 n. 4. Justice Souter, in a concurring opinion joined by Justice Stevens, expressed a belief that the judgment reached by the court also was compelled by the Eighth Amendment. Id. at---, 114 S.Ct. at 2198-99 (Souter, J., concurring).

.Justice Scalia wrote a dissent in which Justice Thomas joined. Id. at -, 114 S.Ct. at 2201 (Scalia, J., dissenting).

. 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, 110 S.Ct. at 2828). 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, 106 S.Ct. 1669, 90 L.Ed.2d 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, 130 L.Ed.2d 1097 (1995); cf. AUridge v. Scoti, 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, 131 L.Ed.2d 851 (1995).

. The Simmons Court also cited Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (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, 105 S.Ct. 1087, 1096-98, 84 L.Ed.2d 53 (1985) (holding that due process entitles an indigent defendant to the assistance of a psychiatrist for the development of his defense). Simmons, 512 U.S. at-, 114 S.Ct. at 2194 (plurality opinion).

. 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, 512 U.S. at -, 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 *1259would 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-, 114 S.Ct. at 2190 (plurality opinion) ("due process requires that the sentencing jury be informed that the defendant is parole ineligible”) with id. at -, 114 S.Ct. 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.

. 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 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, 512 U.S. at -, 114 S.Ct. at 2196 (plurality opinion) (citation omitted).

. 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.

. 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.

. 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, 98 S.Ct. 2954, 57 L.Ed.2d 973 (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 Boyde v. California, 494 U.S. 370, 377, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316 (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 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 fife 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, 244 Va. 445, 423 S.E.2d 360, 369-70 (1992) (defendant eligible for parole after thirty years), cert. denied, 507 U.S. 1036, 113 S.Ct. 1862, 123 L.Ed.2d 483 (1993); Poyner v. Commonwealth, 229 Va. 401, 329 S.E.2d 815, 828 (Va.) (decided prior to Skipper, and no indication of parole ineligibility), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 158 (1985).

. Because of my conclusion that O'Dell’s Simmons claim is not Teague-beared, 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, 110 S.Ct. 1257, 1264, 108 L.Ed.2d 415 (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.