The United States District Court for the Eastern District of Virginia vacated the death sentence of Joseph Roger O'Dell III on federal habeas, holding that Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), was not a "new rule" under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and that O'Dell "was deprived of due process and subjected to cruel and unusual punishment under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, because the trial court failed to allow petitioner to rebut the prosecutor's argument as to petitioner's future dangerousness with evidence that he would be ineligible for parole under state law," J.A. at 355. The district court also denied numerous other claims of O'Dell's, including his claim that new evidence demonstrates that he is actually innocent.

Heeding the instruction of three Members of the Supreme Court that this case "should ... receive careful consideration," O'Dell v. Thompson, 502 U.S. 995, 999, 112 S.Ct. 618, 620, 116 L.Ed.2d 639 (1991) (Blackmun, J., joined by Stevens and O'Connor, JJ.), both the federal district court and now the full en banc court have painstakingly canvassed the record, carefully considering every claim that has been advanced by petitioner. Having done so, we are convinced that O'Dell's claims are without merit and his claim of actual innocence not even colorable. We are likewise convinced that the federal district court erred in concluding that Simmons did not announce a new rule. In California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), every Member of the Supreme Court apparently approved, as constitutionally permissible, the very practice later held unconstitutional in Simmons. The only even arguably contrary authority was a plurality opinion and a single footnote which three Members of the Court believed represented an "abandonment" of the due process holding that O'Dell now contends compelled the result in Simmons. In our judgment, Simmons was the paradigmatic "new rule." Accordingly, we affirm the district court's denial of O'Dell's secondary claims and reverse the district court's judgment granting the writ of habeas corpus.

Over ten years ago, on Tuesday, February 5, 1985, 44-year-old Helen Schartner left the County Line Lounge in Virginia Beach around 11:30 p.m. O'Dell left the same nightclub sometime between 11:30 p.m. and 11:45 p.m. The next day, Schartner's car was found in the parking lot of the County Line Lounge, and, around 3:00 p.m., her body was found in a muddy field across the highway from the club. Tire tracks consistent with the tires on O'Dell's car were found near the body. Schartner had been killed by manual strangulation, with a force sufficient to break bones in her neck and leave finger imprints. She also had eight separate wounds on her head consistent with blows from the barrel of a handgun. About 10 days earlier, a handgun with a barrel that could cause wounds like those found on Schartner's head had been seen in O'Dell's car. Seminal fluid was found in Schartner's vagina and anus. Enzyme tests on that fluid revealed that it was consistent with a mixture of O'Dell's and Schartner's bodily fluids. Spermatozoa also found in Schartner's genital swabs and genital scrapings were consistent with O'Dell's.

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

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

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

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

O'Dell was indicted for capital murder, abduction, rape, and sodomy. On his own motion, and after a court-appointed psychiatrist determined him competent, O'Dell quite ably defended himself pro se, with court-appointed attorney Paul Ray serving as standby counsel. O'Dell was tried, and, on September 10, 1986, the jury convicted him on all counts. The next day, the jury fixed his sentence for murder at death. The jury's recommendation of death was based on its finding that both of Virginia's statutory aggravating factors--future dangerousness and vileness--had been proven. J.A. at 2506. The trial judge adopted the jury's recommendation and sentenced O'Dell to death by electrocution for murder and to 40 years for rape and 40 years for sodomy. O'Dell appealed his sentence to the Supreme Court of Virginia, which affirmed the judgment of the Circuit Court. O'Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491 (1988). The Virginia Supreme Court subsequently granted O'Dell's petition for rehearing in order to consider and reject a claim it had previously held to be procedurally barred, after which it again affirmed the conviction. O'Dell v. Commonwealth, Record No. 861219, slip op. (Va. April 1, 1988). The United States Supreme Court denied certiorari on October 3, 1988. O'Dell v. Virginia, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988).

O'Dell filed a petition for a writ of habeas corpus in the Circuit Court of Virginia Beach on June 1, 1989, and an amended petition on July 3, 1990, both of which were denied. J.A. at 278-79. O'Dell attempted to appeal the denial to the Virginia Supreme Court, but he erroneously filed an "Assignments of Error" with the Supreme Court instead of a "Petition for Appeal," as required by Virginia law. O'Dell attempted to correct the error, but by then the time to file had expired and so the Virginia Supreme Court dismissed his perfected Petition for Appeal as untimely. The United States Supreme Court again denied certiorari on December 2, 1991, with three Justices issuing a statement respecting the denial of certiorari. See O'Dell, 502 U.S. at 995, 112 S.Ct. at 618 (Blackmun, J., joined by Stevens and O'Connor, JJ.).

O'Dell then filed this federal habeas petition on July 23, 1992. The district court, Judge James R. Spencer, held a full evidentiary hearing on O'Dell's claim that new DNA evidence established that he was actually innocent. The court rejected that claim, along with numerous others, but vacated O'Dell's death sentence because he had not been allowed to rebut the prosecution's future dangerousness arguments with a showing that he would be ineligible for parole. In so doing, the court held that this rule, announced in Simmons, was not a new rule under Teague. The Commonwealth of Virginia appeals this latter holding, and O'Dell cross-appeals the denial of his numerous other claims.

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

Under Virginia law, "[a]ny person convicted of three separate felony offenses of (i) murder, (ii) rape or (iii) robbery by the presenting of firearms or other deadly weapon ... shall not be eligible for parole." Va.Code § 53.1-151(B1). O'Dell certainly appears to have had the requisite number of violent felony convictions to be ineligible for parole under Virginia law. Therefore, he requested that he be allowed to respond to the prosecution's arguments of future dangerousness by arguing that he was parole ineligible. J.A. at 2308, 2378-79, 2385-86. As required by Virginia law, however, the trial judge neither allowed O'Dell to argue his parole ineligibility nor provided the jury with any information regarding O'Dell's ineligibility. J.A. at 2386. See Poyner v. Commonwealth, 229 Va. 401, 329 S.E.2d 815, 828 (1985) ("The jury had no right to know what might happen to defendant, in terms of parole eligibility, after sentencing. During the penalty phase it was the jury's duty to assess the penalty, irrespective of considerations of parole."), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 158 (1985). Eight years later, the Supreme Court, in Simmons, held that due process requires that a criminal defendant be allowed to argue his parole ineligibility to rebut prosecution arguments of future dangerousness. O'Dell seeks the benefit of the rule of Simmons, and the Commonwealth argues that Simmons announced a new rule under Teague.

The question of whether a rule is "new" for purposes of Teague arises in two different circumstances: first, where, like here, a particular case is decided after petitioner's conviction becomes final, and petitioner seeks the benefit of the rule of that case; and second, where petitioner seeks the extension of longstanding precedent. Cf. Stringer v. Black, 503 U.S. 222, 227-28, 112 S.Ct. 1130, 1134-35, 117 L.Ed.2d 367 (1992). In both instances, the Teague inquiry is a threshold matter. Graham v. Collins, 506 U.S. 461, 466, 113 S.Ct. 892, 897, 122 L.Ed.2d 260 (1993); Saffle v. Parks, 494 U.S. 484, 487, 110 S.Ct. 1257, 1259, 108 L.Ed.2d 415 (1990). As the Court held in Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994), "if the State ... argue[s] that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim." Therefore, before turning to the merits of O'Dell's claim or attempting to define the precise contours of Simmons, our first inquiry must be whether Simmons announced a new rule under Teague. See also Sawyer v. Smith, 497 U.S. 227, 233-34, 110 S.Ct. 2822, 2826-27, 111 L.Ed.2d 193 (1990); Wright v. West, 505 U.S. 277, 310, 112 S.Ct. 2482, 2500, 120 L.Ed.2d 225 (1992) (Souter, J., concurring in the judgment). But see Wright, 505 U.S. at 309, 112 S.Ct. at 2499 (Kennedy, J., concurring in the judgment). As explained in Caspari,

a federal court should apply Teague by proceeding in three steps. First, the court must ascertain the date on which the defendant's conviction and sentence became final for Teague purposes. Second, the court must survey the legal landscape as it then existed, and determine whether a state court considering the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution. Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle.

510 U.S. at 389, 114 S.Ct. at 953 (internal quotation marks and citations omitted).

O'Dell's conviction became final on October 3, 1988, when the United States Supreme Court denied his petition for certiorari on direct appeal. See O'Dell v. Virginia, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988). Therefore, we must "survey the legal landscape" in October of 1988 to determine whether the result of Simmons (and the accompanying rule necessary to produce that result) was dictated by precedent existing at the time O'Dell's conviction became final. Teague, 489 U.S. at 301, 109 S.Ct. at 1070 ("[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." (first emphasis added)). As the Supreme Court has stated repeatedly, a rule sought by a habeas petitioner is "new," and thus consideration of the underlying claim barred, unless reasonable jurists considering the petitioner's claim at the time his conviction became final " 'would have felt compelled by existing precedent' to rule in his favor." Graham, 506 U.S. at 467, 113 S.Ct. at 897 (emphasis added) (quoting Saffle, 494 U.S. at 488, 110 S.Ct. at 1260).1 The inquiry is not merely whether the "claim" was "predicated" on preexisting precedent or whether the "challenge" was "dictated" by such precedent; it is in sufficient that prior decisions "inform, or even control or govern, the analysis of" a petitioner's claim. Saffle, 494 U.S. at 491, 110 S.Ct. at 1262. See also Sawyer, 497 U.S. at 236, 110 S.Ct. at 2828 (quoting Saffle ); Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990) (noting that a decision within the "logical compass" of an earlier decision may nonetheless announce new rule). Rather, the result of the case must have been compelled by then-existing precedent, as even the dissenting Justices in the continuing debate over the contours of the "new rule" doctrine agree.2

We have suggested otherwise in several recent cases, see, e.g., Turner v. Williams, 35 F.3d 872 (4th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1359, 131 L.Ed.2d 216 (1995), and Ostrander v. Green, 46 F.3d 347 (4th Cir.1995). Both Turner and Ostrander applied broad formulations, asking whether prior caselaw "dictated petitioner's challenge" or whether petitioner's challenge was "predicated on" prior caselaw. Applying the first locution of whether prior precedent "dictates the challenge," alone would result in an inestimable number of cases in which federal courts would be obliged to undertake full merits review of reasonable, and in many instances unassailable, state court judgments. For in many cases that are not currently reviewable on federal habeas, the state court's judgment (against the petitioner) will have been dictated by existing precedent. Any cases not subject to review under the "dictates the challenge" locution would undoubtedly be subject to review under the alternative formulation that the "new rule" doctrine does not bar consideration of any claim "predicated on" prior caselaw. This formulation renders reviewable on habeas essentially every claim, for virtually every habeas petitioner necessarily "predicates" his claims on prior caselaw.

These consequences of the formulations of the "new rule" inquiry embraced in Turner and Ostrander underscore the error of those two decisions. The very purpose of Teague was to halt federal habeas review even of state court interpretations of federal law that ultimately prove incorrect, provided they are reasonable. Yet under the reasoning of those two cases, federal courts would be reviewing and deciding on the merits countless state court judgments that are not only reasonable but, indisputably correct.

Thus, both locutions discussed in Turner and Ostrander would frustrate the principles of finality, comity toward state judicial tribunals, see Teague, 489 U.S. at 310, 109 S.Ct. at 1075 (explaining that " '[s]tate courts are understandably frustrated' " when federal habeas courts reverse their reasonable rulings on federal law) (quoting Engle v. Isaac, 456 U.S. 107, 128 n. 33, 102 S.Ct. 1558, 1572 n. 33, 71 L.Ed.2d 783 (1982)), and respect for state prosecutorial authorities, see Teague, 489 U.S. at 310, 109 S.Ct. at 1075 (stating that federal review should not require states "to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards"), that prompted adoption of Teague 's "new rule" doctrine in the first place.

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

The result of the case in question (here, Simmons ) must also have been compelled because of the rule that the petitioner seeks. In making this determination, of course, the "rule" must be identified at the appropriately specific level of generality. The appropriate level of generality for identifying the rule is that level represented by the narrowest principle of law that was actually applied in order to decide the case in question. Thus, for example, as we held in Townes v. Murray, 68 F.3d 840 (4th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 831, 133 L.Ed.2d 830 (1996), the most specific principle of law applied in Simmons, and therefore the "rule" of Simmons, is "that '[w]here the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury--by either argument or instruction--that he is parole ineligible.' " Id. at 850 (quoting Simmons, 512 U.S. at ----, 114 S.Ct. at 2201 (O'Connor, J., concurring in the judgment)). To frame the rule more broadly--for example, as that of "due process" or "the right to be heard" or generally as "the right to rebut the State's arguments" or "the need for reliability in capital sentencing"--would vitiate Teague. As the Chief Justice explained for the Court recently in Gray v. Netherland, --- U.S. ----, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996), for example,

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

Id. at ----, 116 S.Ct. at 2084 (quoting Sawyer, 497 U.S. at 236, 110 S.Ct. at 2828); see also Sawyer, 497 U.S. at 236, 110 S.Ct. at 2828 ("In petitioner's view, Caldwell [v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985),] was dictated by the principle of reliability in capital sentencing. But the test would be meaningless if applied at this level of generality." (emphasis added)) (citing Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987), with the following parenthetical: "[I]f the test of 'clearly established law' were to be applied at this level of generality, ... [p]laintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights."); Gilmore v. Taylor, 508 U.S. 333, 344, 113 S.Ct. 2112, 2119, 124 L.Ed.2d 306 (1993); Wright, 505 U.S. at 311-12, 112 S.Ct. at 2500-01 (Souter, J., concurring in the judgment).

As the Supreme Court's repeated analogy to the qualified immunity analysis confirms, the new rule analysis fundamentally asks the same question as does the qualified immunity analysis--whether a contrary conclusion would have been objectively unreasonable. Cf. Hogan v. Carter, 85 F.3d 1113, 1117 n. 3 (4th Cir.) (en banc ); 28 U.S.C. § 2254(d)(1) (as amended April 24, 1996). The varying formulations for the new rule test that have, from time to time, been employed by the Court3 are but myriad faces of the same basic inquiry: whether it would have been objectively unreasonable, under the law existing at that time, for a judge to reach a contrary result to that subsequently reached. As the Court explained in Butler, 494 U.S. at 414, 110 S.Ct. at 1217, "[t]he 'new rule' principle ... validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." See also Graham, 506 U.S. at 467, 113 S.Ct. at 897 (quoting Butler, 494 U.S. at 414, 110 S.Ct. at 1217). The question is "whether a state court considering [petitioner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [petitioner] seeks was required by the Constitution." Saffle, 494 U.S. at 488, 110 S.Ct. at 1260 (emphasis added); see also Graham, 506 U.S. at 467, 113 S.Ct. at 897. Whenever the "outcome" of a case was "susceptible to debate among reasonable minds," Butler, 494 U.S. at 415, 110 S.Ct. at 1217, or among "reasonable jurists," Sawyer, 497 U.S. at 234, 110 S.Ct. at 2827, then that case announced a new rule. See also Butler, 494 U.S. at 417-18, 110 S.Ct. at 1218-19 (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting) ("[A] state prisoner can secure habeas relief only by showing that the state court's rejection of the constitutional challenge was so clearly invalid under then-prevailing legal standards that the decision could not be defended by any reasonable jurist." (second emphasis added)); Graham, 506 U.S. at 467, 476, 113 S.Ct. at 897, 902; Stringer, 503 U.S. at 238, 112 S.Ct. at 1140 (Souter, J., dissenting).

As noted, the narrowest principle of law that was applied in order to decide Simmons was that applied by Justice O'Connor in her separate concurrence: "[w]here the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury--by either argument or instruction--that he is parole ineligible." 512 U.S. at ----, 114 S.Ct. at 2201 (O'Connor, J., joined by Rehnquist, C.J., and Kennedy, J., concurring in the judgment). Therefore, unless it would have been objectively unreasonable for a state court in 1988 (when O'Dell's conviction became final) to conclude that the Constitution did not require that the jury be informed of parole ineligibility, Simmons must be held to have announced a new rule.

"Surveying the legal landscape" in 1988, Graham, 506 U.S. at 468, 113 S.Ct. at 898, a reasonable jurist would have been faced with the following caselaw. First, that jurist would have been confronted with the cases upon which Simmons principally relied, Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). In Gardner, the Court vacated a death sentence because the sentencing court had relied in part on a secret presentence report that the defendant never had an opportunity to see or to rebut. The three-Justice plurality concluded that "petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." 430 U.S. at 362, 97 S.Ct. at 1206 (Stevens, J., joined by Stewart and Powell, JJ.). Under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977), however, the holding of Gardner is the "position taken by those Members who concurred in the judgment[ ] on the narrowest grounds"; therefore, the holding of Gardner is found in Justice White's opinion, in which he concurred in the judgment on the narrow and fact-specific ground that reliance upon secret information in sentencing a man to death violates the Eighth Amendment--although not necessarily due process. Gardner, 430 U.S. at 364, 97 S.Ct. at 1207 (White, J., concurring in the judgment).

In 1988, a reasonable jurist would also have considered Skipper, where the Court vacated a death sentence because, in violation of the Eighth Amendment rule of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), the jury had been prevented from hearing the defendant's evidence of previous good behavior in jail. Skipper, 476 U.S. at 4, 106 S.Ct. at 1670. Specifically, the Court held that "evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating," and that "[u]nder Eddings, such evidence may not be excluded from the sentencer's consideration." Id. at 5, 106 S.Ct. at 1671.

The sole question upon which certiorari was granted in Skipper was whether, under the Eighth Amendment, the lower court's decision was "inconsistent with th[e] Court's decisions in Lockett and Eddings." Id. at 4, 106 S.Ct. at 1670. And the Court noted that this Eighth Amendment issue was "the only question before [it]." Id. One footnote in Skipper, however, read as follows:

The relevance of evidence of probable future conduct in prison as a factor in aggravation or mitigation of an offense is underscored in this particular case by the prosecutor's closing argument, which urged the jury to return a sentence of death in part because petitioner could not be trusted to behave if he were simply returned to prison. Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of Lockett and Eddings that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death "on the basis of information which he had no opportunity to deny or explain." Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1207, 51 L.Ed.2d 393 (1977).

Id. at 5 n. 1, 106 S.Ct. at 1671 n. 1. In addition to this footnote, which provides the strongest suggestion that the due process rule announced in Simmons was not new, three Justices also joined a separate opinion concluding that, although Skipper's death sentence did not violate the Eighth Amendment under Lockett and Eddings, it did violate due process under Gardner. Id. at 9, 106 S.Ct. at 1673 (Powell, J., joined by Burger, C.J., and Rehnquist, J., concurring in the judgment).

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

Of critical significance, however, in addition to Gardner and Skipper, a reasonable jurist in 1988 would also have confronted California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), in which the Court not only held that a defendant was not constitutionally entitled to apprise the jury of the Governor's power to commute a death sentence (when the trial court had already instructed the jury of the Governor's power to commute a life sentence without parole), but also expressly noted with approval the practices in many states of forbidding any reference to the possibility of pardon, commutation, or parole.

In Ramos, the Court upheld the constitutionality of a death sentence under the Eighth and Fourteenth Amendments,4 where the jury had been instructed, as required by state statute, that the Governor possessed the power to commute a sentence of life imprisonment without possibility of parole. Justice O'Connor, writing for the Court, repeatedly emphasized that, with only a few exceptions, "the Court has deferred to the State's choice of substantive factors relevant to the penalty determination." Id. at 1001, 103 S.Ct. at 3453. The Court invoked Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), to make the point, noting that "the joint opinion [in Gregg ] did not undertake to dictate to the State the particular substantive factors that should be deemed relevant to the capital sentencing decision," Ramos, 463 U.S. at 999, 103 S.Ct. at 3452 (emphasis in original), and then quoting Gregg 's observation that the guidance that should be given the jury in making its sentencing determination is that " 'that the State, representing organized society, deems particularly relevant to the sentencing decision,' " id. at 1000, 103 S.Ct. at 3453 (quoting Gregg, 428 U.S. at 192, 96 S.Ct. at 2934) (emphasis added by Ramos Court).

Importantly, the Court in Ramos also squarely rejected an argument by petitioner that was virtually indistinguishable in principle from that made by petitioner in Simmons. Ramos argued that an instruction as to the Governor's power to commute a death sentence was required under "basic principles of fairness," because, otherwise, the court's instruction that the Governor could commute a life sentence, "create[d] the misleading impression that the jury can prevent the defendant's return to society only by imposing the death sentence," id. at 1010-11, 103 S.Ct. at 3458-59, just as Simmons argued that an instruction to the jury as to his parole ineligibility was required to eliminate the mistaken impression that only by imposing death could the jury prevent his return into society. As the Court explained petitioner's argument in Simmons:

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

512 U.S. at ----, 114 S.Ct. at 2191. Notwithstanding, the Court dismissed Ramos' argument on the ground, inter alia, that the entire instruction "satisfies the Jurek [v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976),] requirement that '[w]hat is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.' " Ramos, 463 U.S. at 1012 n. 29, 103 S.Ct. at 3459 n. 29 (quoting Jurek, 428 U.S. at 276, 96 S.Ct. at 2958) (emphasis added). Justice Marshall in dissent in Ramos even criticized the majority's rejection of this instruction on precisely the same grounds that the Simmons Court ultimately employed in requiring an instruction as to parole ineligibility:

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

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

Ramos, 463 U.S. at 1016, 103 S.Ct. at 3461 (Marshall, J., dissenting) (citations and footnote omitted, emphasis added). Compare Simmons, 512 U.S. at ----, 114 S.Ct. at 2193 ("In this case, the jury reasonably may have believed that petitioner could be released on parole if he were not executed. To the extent this misunderstanding pervaded the jury's deliberations, it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration.").5

Although the Ramos Court noted that it considered it desirable for the jury to have this information concerning the Governor's power to commute a death sentence, and as much other information as possible during sentencing, 463 U.S. at 1009 n. 23, 103 S.Ct. at 3458 n. 23, it nevertheless found that the trial court's refusal to inform the jury of the Governor's power to commute the death sentence (while at the same time informing it of his power to commute life imprisonment) was in no way unconstitutional, see id. at 1013, 103 S.Ct. at 3460 ("[The State's] failure to inform the jury also of the Governor's power to commute a death sentence does not render it constitutionally infirm.").

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

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

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

Id. at 1013-14, 103 S.Ct. at 3459-60 (footnote omitted) (emphasis added).

Even more so, that jurist would have fixed immediately upon footnote 30 within this concluding passage. As Justice O'Connor, the author of Ramos and the necessary fifth vote in Simmons, observed in Simmons itself, see 512 U.S. at ----, 114 S.Ct. at 2200 (O'Connor, J., concurring in the judgment) (emphasis added), Ramos "noted with approval " that,

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

Ramos, 463 U.S. at 1013 n. 30, 103 S.Ct. at 3460 n. 30 (emphasis added). In that footnote passage in Ramos, the Court even cited "with approval" a Georgia statute "prohibiting argument as to the possibility of pardon, parole, or clemency," and numerous state cases holding, for example, that " '[a]ny consideration of the possibility of parole as such simply is irrelevant,' " and that "consideration of parole [is] outside [the] proper scope of jury's duty as fixed by statute." Id.

In fact, not only the majority, but the full Court, recognized and approved, as constitutionally permissible, the practice of "nearly every jurisdiction which has considered the question" of not "permitt[ing] [juries] to consider commutation and parole." Id. at 1025, 103 S.Ct. at 3466 (Marshall, J., dissenting, joined by Brennan and Blackmun, JJ.) (emphasis added); see also id. at 1029, 103 S.Ct. at 3468 (Stevens, J., dissenting). The dispute between the majority and the dissenters was whether the States could ever allow the jury to consider matters such as commutation, pardons or parole. The majority concluded that the decision to allow jury consideration of these matters should be left to the discretion of the States, but the dissenters went even further, arguing that States should never be allowed to permit instruction or argument to the jury concerning commutation, pardon, or parole:

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

Id. at 1021-23, 103 S.Ct. at 3464-65 (Marshall, J., dissenting) (emphasis added, footnotes and citations omitted).

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

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

Id. at 1026, 103 S.Ct. at 3466 (emphasis added, footnotes omitted). And, as support for the proposition that "in those States which formerly permitted jury consideration of parole and commutation the trend has been to renounce the prior decisions," Justice Marshall cited the very same Georgia statute cited by the majority in footnote 30 as "forbidding any jury argument concerning commutation or parole ." Id. at 1027 & n. 16, 103 S.Ct. at 3467 & n. 16 (referencing Ga.Code Ann. § 27-2206 (1972), the precursor to Ga.Code Ann. 17-8-76) (emphasis added). Even more strikingly, Justice Marshall cited Clanton v. Commonwealth, 223 Va. 41, 286 S.E.2d 172 (1982), which affirmed a trial court's refusal to answer the jury's question as to whether the capital defendant would be eligible for parole and which reaffirmed Hinton v. Commonwealth, 219 Va. 492, 247 S.E.2d 704 (1978), and Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980), both of which were expressly relied upon by the trial court below to deny O'Dell's request that he be allowed to argue parole ineligibility to the jury, J.A. at 2378-79, 2382-85. See Ramos, 463 U.S. at 1026 n. 13, 103 S.Ct. at 3466 n. 13 (Marshall, J., dissenting); see also id. (citing Summers v. State, 86 Nev. 210, 467 P.2d 98, 100 (1970) ("reaffirming Serrano v. State, 84 Nev. 676, 447 P.2d 497 (1968), which instructed [the] jury to assume that life without parole means exactly that ") (parenthetical from Ramos, emphasis added)).6

In hindsight, and particularly in the wake of Simmons, it might be suggested that the Court in Ramos was expressing approval only of those state laws forbidding reference to the affirmative possibility of parole, and not of those prohibiting reference to the legal im possibility of parole, although to our knowledge that has never been suggested, and petitioner does not do so here. We believe, however, that, even with the Court's observation that "States are free to provide greater protections in their criminal justice system than the Federal Constitution requires," 463 U.S. at 1013-14, 103 S.Ct. at 3460, such a suggestion would border on the disingenuous, considering that the very state sentencing law that the Court was reviewing in Ramos, like numerous other states' laws then in effect and of which the Court was aware,7 provided for "life without possibility of parole" as the only alternative to death, id. at 994-95, 103 S.Ct. at 3449-50, and the Court nonetheless chose the broad, categorical language that it did, without even a hint that it intended such a distinction. Indeed, Justice O'Connor's concurrence in the Simmons judgment, "despite [the Court's] general deference to state decisions regarding what the jury should be told about sentencing," 512 U.S. at ----, 114 S.Ct. at 2201 (emphasis added)--an explicit reference to her opinion for the Court in Ramos and to the discussion at pages 1013-14 and n. 30, 103 S.Ct. at page 3460 and n. 30 in particular, see id. at ----, 114 S.Ct. at 2200--all but confirms that the Court intended no such distinction in Ramos. And, of course, the reasoning of the Ramos dissent--that the jury should be forbidden from considering anything beyond the particular defendant's character and his crime--which Justice Blackmun, the author of the plurality in Simmons, expressly joined, would not even admit such a distinction.

The question, in any event, is not whether in fact the Court in this passage was limiting its approval to those state laws prohibiting reference to the possibility that the defendant might become parole eligible. The only question is whether it would have been objectively unreasonable for jurists not to read the passage as so limited. It would be the height of pedanticism to suggest that it would have been objectively unreasonable for the 1988 jurist to have understood the passage as extending to all state laws prohibiting comment on parole, including those prohibiting comment as to parole ineligibility. Both the majority's and the dissent's language unquestionably swept broadly, suggesting no distinction whatsoever. And Ramos' holding that the State of California was not constitutionally required to inform the jury that the Governor could also commute a death sentence, in the face of petitioner's argument that not to do so left the jury with the belief that it could prevent his return to society only by sentencing him to death, would have been analytically indefensible had the Court there drawn such a distinction. Even in Simmons, which ultimately constitutionalized this very distinction, not a single Justice so much as suggested that the distinction had actually been drawn in Ramos, ten years earlier. Under these circumstances, to suggest now that the distinction was made then, and that the several states were objectively unreasonable in not divining it at the time, would be not only demoralizing to the state and lower courts, but also destructive of the principles of comity and finality that inspired the "new rule" doctrine to begin with.

Finally, although the Supreme Court itself seemed to consider Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), wholly irrelevant to the question decided in Simmons,8 the reasonable jurist in 1988 would have at least perused that case as well. In Caldwell, the prosecutor had argued to the jury that it would not be finally responsible for the imposition of a death penalty because its decision would automatically be reviewed by the state's Supreme Court. The Mississippi Supreme Court rejected Caldwell's claim that such an argument violated the Eighth Amendment, concluding that, " ' [b]y [Ramos '] reasoning, states may decide whether it is error to mention to jurors the matter of appellate review.' " Id. at 326, 105 S.Ct. at 2637 (quoting Caldwell v. State, 443 So.2d 806, 813 (Miss.1983)). The Supreme Court reversed, with a plurality of the Court characterizing as "too broad a view of Ramos " Mississippi's reading of that case as "[holding] that States are free to expose capital sentencing juries to any information and argument concerning postsentencing procedures." 472 U.S. at 335, 105 S.Ct. at 2643. Rather, the plurality explained, the Court upheld the instruction in Ramos because it was accurate and relevant to a legitimate penological objective. Id. And on this basis, the Caldwell plurality distinguished the prosecutor's argument there before it:

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

Id. at 336, 105 S.Ct. at 2643.

Significantly, Justice O'Connor joined the judgment and the opinion of the Court, except that part in which Justice Marshall, in what consequently was only a plurality, discussed Ramos and the appropriateness of states allowing their juries to consider matters such as postsentencing appellate review. Id. at 341, 105 S.Ct. at 2646 (O'Connor, J., concurring in part and concurring in the judgment). While Justice O'Connor agreed with the plurality that the prosecutor's argument was inaccurate and misleading, and therefore violative of the Eighth Amendment, she disagreed with the plurality's conclusion regarding the complete irrelevancy to the sentencing decision of information concerning appellate review. Justice Marshall had observed for the plurality, adopting the same position that he had articulated in dissent in Ramos, that the availability of appellate review "is simply a factor that in itself is wholly irrelevant to the determination of the appropriate sentence." Id. at 336, 105 S.Ct. at 2643. But Justice O'Connor's opinion, which, as the Court held in Romano, 512 U.S. at ----, 114 S.Ct. at 2010, "is controlling" under Marks, defended her majority position in Ramos and reaffirmed that the Constitution does not prohibit a jury from receiving accurate information as to state post-sentencing law:

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

Caldwell, 472 U.S. at 342, 105 S.Ct. at 2646 (O'Connor, J., concurring in part and concurring in the judgment) (citations omitted; emphasis added).

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

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

Caldwell, 472 U.S. at 342, 105 S.Ct. at 2646. Compare Simmons, 512 U.S. at ----, ----, 114 S.Ct. at 2191, 2193. Of course, saying that the states may choose, as a matter of pol icy, to attempt to eliminate any pre-existing juror misconceptions about post-sentencing procedures is necessarily to say that they are not constitutionally required to do so.

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

A reasonable jurist in 1988, thus, would have found himself in something of a quandary. Footnote one of Skipper, in combination with the plurality opinion in Gardner, at least suggested that due process might compel the rule in Simmons. However, the holding, reasoning, and express language of Ramos, and in particular the text at and of footnote 30, seemed to render it all but a certainty that the rule of Simmons was not only not compelled, but forbidden--a conclusion only reinforced by the Ramos dissenters and by Caldwell. As even the Simmons plurality recognized, the "States that do not provide capital-sentencing juries with any information regarding parole ineligibility seem to rely ... on the proposition that Ramos held that such determinations are purely matters of state law." Simmons, 512 U.S. at ---- - ---- & n. 8, 114 S.Ct. at 2195-96 & n. 8 (citing the decision of the Virginia Supreme Court on O'Dell's direct appeal ).

Since the reasonable state or federal lower court jurist was not at liberty to ignore either Gardner/Skipper or Ramos/Caldwell, and since the Supreme Court apparently viewed these cases as all compatible--it having not overruled Gardner in Ramos or Caldwell, nor Ramos and Caldwell in Skipper--that jurist would have been obliged to reconcile these cases by finding some "meaningful[ ] distin[ction]" between them, see Wright, 505 U.S. at 304, 112 S.Ct. at 2497 (O'Connor, J., concurring in the judgment). Upon examining the cases, an entirely reasonable distinction would have suggested itself--a distinction of Gardner and Skipper, on the one hand, from Ramos and Caldwell on the other, much like the distinction the Court drew in Saffle between the rule of Lockett and Eddings (the key precedents underlying Skipper ), and the rule that Parks was there urging. In Saffle, the Court concluded that Lockett and Eddings "place clear limits on the ability of the State to define the factual bases upon which the capital sentencing decision must be made." Saffle, 494 U.S. at 490, 110 S.Ct. at 1261 (emphasis added) (citing Skipper, with the following parenthetical: "exclusion of evidence regarding defendant's post-offense conduct "(emphasis added)). The Court then contrasted that rule with petitioner's proposed rule that states could not constitutionally prohibit juries from sentencing based upon sympathy and empathy:

Parks asks us to create a rule relating, not to what mitigating evidence the jury must be permitted to consider in making its sentencing decision, but to how it must consider the mitigating evidence. There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making its sentencing decision and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision. We thus cannot say that the large majority of federal and state courts that have rejected challenges to anti-sympathy instructions similar to that given at Parks' trial have been unreasonable in concluding that the instructions do not violate the rule of Lockett and Eddings.

Id.

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

That is, a reasonable jurist could have concluded that the due process principle of Gardner and Skipper was that a trial court could not deny a capital defendant the opportunity to rebut arguments made by the State with relevant factual evidence about himself, his character, and his particular offense. Thus, the Court required the secret presentence report in Gardner, which provided "factual information" upon which the judge relied in sentencing Gardner to death, Gardner, 430 U.S. at 353, 97 S.Ct. at 1202 (plurality); id. at 364, 97 S.Ct. at 1208 (White, J., concurring in the judgment) ("secret information relevant to the 'character and record of the individual offender' "), be made known to the defendant so that he could attempt to rebut it with contrary "factual information." See also id. at 360, 97 S.Ct. at 1205 (plurality) ("Our belief that debate between adversaries is often essential to the truth-seeking function of trials requires us ... to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases." (emphasis added)). And, thus, the prosecution's argument in Skipper that the defendant would pose a future danger and would "likely rape other prisoners," Skipper, 476 U.S. at 3, 106 S.Ct. at 1670, necessitated that the defendant be allowed to rebut this argument with evidence of his "past conduct," id. at 5, 106 S.Ct. at 1671, namely good behavior while previously incarcerated. As the Court emphasized at the outset of its opinion in Skipper,

[t]here is no disputing that this Court's decision in Eddings requires that in capital cases " 'the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that defendant proffers as a basis for a sentence less than death.' " Equally clear is the corollary rule that the sentencer may not refuse to consider or be precluded from considering "any relevant mitigating evidence."

Id. at 4, 106 S.Ct. at 1670-71 (citations omitted, emphasis added).10

In contrast, that 1988 jurist could have and, indeed, would have most reasonably understood Ramos, as apparently almost every jurist in fact did, as setting forth the principle that whether to instruct juries on state law--like the governor's power to commute a sentence or the parole board's power to parole a prisoner--is a decision left to the "wisdom of ... the States" by the Constitution. Ramos, 463 U.S. at 1014, 103 S.Ct. at 3460; see also id. at 1013 & n. 30, 103 S.Ct. at 3460 & n. 13. The Court itself seems to have understood Ramos this way when it held in 1990 in Sawyer that its decision in Caldwell was a new rule under Teague. As the Court said there, although the Mississippi Supreme Court's 1983 holding "without dissent ... that Ramos stood for the proposition that 'states may decide whether it is error to mention to jurors the matter of appellate review,' " may in retrospect have proven to be incorrect to the limited extent that it failed to recognize that a state may not provide inaccurate or misleading information even about post-sentencing procedures, it was nonetheless a reasonable conclusion at the time. 497 U.S. at 237, 110 S.Ct. at 2828 (quoting Caldwell v. State, 443 So.2d 806 (Miss.1983)). And, of course, nothing in Caldwell called into question (indeed, as noted, that case only confirmed) Ramos ' deference to the states on whether to instruct juries as to state post-sentencing laws, provided that any information the states choose affirmatively to provide is accurate. As Justice O'Connor explained:

The Court today, relying in part on my opinion in Caldwell v. Mississippi, rejects petitioner's claim that the introduction of evidence of a prior death sentence impermissibly undermined the jury's sense of responsibility. I write separately to explain why in my view petitioner's Caldwell claim fails. The inaccuracy of the prosecutor's argument in Caldwell was essential to my conclusion that the argument was unconstitutional. An accurate description of the jury's role--even one that lessened the jury's sense of responsibility--would have been constitutional. [Caldwell, 472 U.S. at 342, 105 S.Ct. at 2646] ("a misleading picture of the jury's role is not sanctioned by [California v. Ramos ], [b]ut neither does Ramos suggest that the federal Constitution prohibits the giving of accurate instructions regarding post-sentencing procedures").

Romano, 512 U.S. at ----, 114 S.Ct. at 2013 (O'Connor, J., concurring).

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

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

Simmons, 512 U.S. at ----, 114 S.Ct. at 2200 (O'Connor, J., concurring in the judgment) (emphasis added). Even Jonathan Dale Simmons himself drew this distinction in arguing for the rule of Simmons. See Petitioner's Br., Simmons v. South Carolina, No. 92-9059 (1994),at * 35 ("Skipper concerned the exclusion of evidence, rather than the withholding of accurate legal information from the jury.").

And, at the very least, this was a reasonable distinction in 1988, considering also that relevant factual information, like secret sentencing reports or prior good behavior, cannot change with time, but a state's legal standards and post-conviction procedures, like eligibility for commutation or parole, can always change long after the sentencing jury renders its verdict. Cf. Ramos, 463 U.S. at 1020, 103 S.Ct. at 3463 (Marshall, J., dissenting) ("To invite the jury to indulge in such speculation is to ask it to foretell numerous imponderables: the policies that may be adopted by unnamed future Governors and parole officials, ... as well as any other factors that might be deemed relevant to the commutation and parole decisions. Yet these are questions that 'no human mind can answer ... because they rest on future events which are unpredictable.' " (emphases added)). But see Simmons, 512 U.S. at ----, 114 S.Ct. at 2195. Moreover, this was a distinction that followed directly from the Court's holding in Jurek, which was reaffirmed in Ramos, that, under the Eighth Amendment, "[w]hat is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine." Jurek, 428 U.S. at 276, 96 S.Ct. at 2958 (emphasis added); see also Ramos, 463 U.S. at 1006, 1012 n. 29, 103 S.Ct. at 3456, 3459 n. 29. And it was factual evidence about the Eighth Amendment factors relevant to the individual defendant which Gardner and Skipper had held defendants had a due process right to introduce in rebuttal of prosecution arguments concerning these factors. Not until Simmons itself had the Court ever held that there was a due process right to rebut prosecution arguments with evidence unrelated to the defendant's character and crime. Cf. Sawyer, 497 U.S. at 236, 110 S.Ct. at 2828 ("It is beyond question that no case prior to Caldwell invalidated a prosecutorial argument as impermissible under the Eighth Amendment.").

That the Supreme Court in Simmons ultimately resolved any tension between the Gardner/Skipper right to rebut state arguments with factual evidence, and Ramos ' pronouncement that the states are owed deference as to whether to instruct their juries on the implications of state laws governing the powers of commutation and parole, and that it resolved that tension by permitting argument based upon state law in the narrow circumstance of capital cases where future dangerousness is argued and the defendant is parole ineligible, is, of course, not determinative of the new rule inquiry. The question is not whether the distinction between arguments from factual evidence concerning the defendant's character and offense and arguments from state law itself was necessarily correct, or whether it was ultimately accepted by the Court as dispositive; rather, the only question is whether it would have been objectively unreasonable for a jurist in 1988--forced to grapple with and reconcile Gardner, Skipper, Ramos, and Caldwell--to have drawn this distinction, and therefore to have concluded that the rule in Simmons was not compelled. See Wright, 505 U.S. at 304, 112 S.Ct. at 2497 (O'Connor, J., concurring in the judgment) ("To determine what counts as a new rule, Teague requires courts to ask whether the rule a habeas petitioner seeks can be meaningfully distinguished from that established by binding precedent at the time his state court conviction became final."). The answer to this latter question is most assuredly "no." In no sense would this have been an "illogical or even a grudging application," Butler, 494 U.S. at 415, 110 S.Ct. at 1217, of these cases, as evidenced by the fact that Justice O'Connor recognized the very same distinction in her opinion in Simmons.

Even the Simmons plurality seems to have acknowledged as much. After noting that "[t]he few states that do not provide capital-sentencing juries with any information regarding parole ineligibility seem to rely ... on the proposition that California v. Ramos held that such determinations are purely matters of state law," Simmons, 512 U.S. at ----, 114 S.Ct. at 2195-96, the plurality implicitly validated the reasonableness of this reliance, conceding that "[i]t is true that Ramos stands for the broad proposition that [the Court] generally will defer to a State's determination as to what a jury should and should not be told about sentencing," a proposition with which the full Court agreed, id.; see also id. at ----, 114 S.Ct. at 2200 (O'Connor, J., concurring in the judgment) ("The decision whether or not to inform the jury of the possibility of early release is generally left to the States."). In other words, the Court itself seemed to understand that it had chosen to recognize in Simmons yet another exception to what was (and is still today) indisputably its general rule of deference to the states on whether to inform their juries of state law governing such matters as commutation and parole. See, e.g., Simmons, 512 U.S. at ----, 114 S.Ct. at 2201 (O'Connor, J., concurring in the judgment) ("[D]espite our general deference to state decisions regarding what the jury should be told about sentencing, I agree that due process requires ...."); see also Johnson v. Scott, 68 F.3d 106, 111 n. 11 (5th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1358, 134 L.Ed.2d 525 (1996).11

In holding that Simmons announced a new rule, we recognize that Justice Blackmun stated in his opinion in Simmons that "[t]he trial court's refusal to apprise the jury of information crucial to its sentencing determination ... cannot be reconciled with our well-established precedents interpreting the Due Process Clause," and that "[t]he principle announced in Gardner [and] reaffirmed in Skipper ... compels " this conclusion. Simmons, 512 U.S. at ----, 114 S.Ct. at 2194 (Blackmun, J.) (emphasis added). However, not only is this dicta, it is merely that of a plurality of the Court. Notably, Justice O'Connor's concurrence in the judgment, joined by the Chief Justice and Justice Kennedy, and necessary for the Simmons majority, avoids any suggestion that the Court's decision was "compelled" by prior caselaw. In any event, the Court itself has admonished that categorical language about the degree to which a decision on the merits is controlled by prior decisions does not determine whether that decision was compelled for new rule purposes. See, e.g., Butler, 494 U.S. at 415, 110 S.Ct. at 1217. As the Court stated in Butler:

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

Id. We do not ascribe any particular significance to the fact that Justice Blackmun used the word "compels" in Simmons, instead of "controlled" or "within the logical compass of," as used by the Court in Butler. The point of the Butler passage, as we understand it, is that the hortatory dicta used in opinions to underscore their faithfulness to precedent should not be considered binding upon the separate question of whether they announced a new rule under Teague. Cf. Penry, 492 U.S. at 353, 109 S.Ct. at 2965 (Scalia, J., dissenting) ("In a system based on precedent and stare decisis, it is the tradition to find each decision 'inherent' in earlier cases....").

Our conclusion that the determination in 1988 that the Constitution did not require O'Dell be allowed to argue parole ineligibility was a "reasonable, good-faith interpretation[ ] of existing precedents," Butler, 494 U.S. at 414, 110 S.Ct. at 1217, is "confirmed by the experience of the lower courts." Caspari, 510 U.S. at 393, 114 S.Ct. at 955.

As Justice Kennedy noted for the Court in Sawyer, "[s]tate courts are coequal parts of our national judicial system and give serious attention to their responsibilities for enforcing the commands of the Constitution." 497 U.S. at 241, 110 S.Ct. at 2831. Because "[c]onstitutional error is not the exclusive province of the federal courts, ... in the Teague analysis the reasonable views of state courts are entitled to consideration along with those of federal courts." Caspari, 510 U.S. at 395, 114 S.Ct. at 956. In 1988, the Virginia Supreme Court, which, "as a state court, is the primary beneficiary of the Teague doctrine," Stringer, 503 U.S. at 237, 112 S.Ct. at 1140, had repeatedly held that "it [is] the jury's duty to assess the penalty, irrespective of considerations of parole." Poyner, 329 S.E.2d at 828; see also Stamper, 257 S.E.2d at 821 (expressly relied upon by the trial court in denying O'Dell's request, J.A. at 2378-79); Williams v. Commonwealth, 234 Va. 168, 360 S.E.2d 361, 368 (1987) ("A reduced sentence is not the responsibility of the judiciary but of the executive department, and argument as to what that department might do encroaches upon the separation of their functions."), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988); Turner v. Commonwealth, 234 Va. 543, 364 S.E.2d 483, 487-88, cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988) (rejecting petitioner's argument that, under Skipper and Ramos, he should be entitled to present evidence on parole eligibility). Of course, the Virginia Supreme Court's decision on direct appeal in this case--an "especially valuable" opinion because it "concern[s] the legal implications of precisely the same set of facts [and so] is the closest one can get to a 'case on point,' " Wright, 505 U.S. at 305, 112 S.Ct. at 2497 (O'Connor, J., concurring in the judgment)--concluded as well, relying on the long line of Virginia precedent, that the defendant should not be able to argue parole eligibility. O'Dell, 364 S.E.2d at 507. And, from 1988 until Simmons, the Virginia Supreme Court continued to rely on Ramos in denying parole-ineligible defendants the right to argue their parole ineligibility to capital sentencing juries. As the Court elaborated in Mueller v. Commonwealth, 244 Va. 386, 422 S.E.2d 380, 394 (1992) (emphasis added), cert. denied, 507 U.S. 1043, 113 S.Ct. 1880, 123 L.Ed.2d 498 (1993),

Mueller argues that the trial court violated his due process rights by refusing to instruct the jury that, pursuant to Code § 53.1-151(B1), he would not be eligible for parole.... We hold that the trial court did not err in its rulings here. This Court has held uniformly and repeatedly that information regarding parole eligibility is not relevant for the jury's consideration. Further, the United States Supreme Court has expressly left the determination of this question to the individual states as a matter of state law. California v. Ramos, 463 U.S. 992, 1013-14, 103 S.Ct. 3446, 3460, 77 L.Ed.2d 1171 (1983).

Although likewise not necessarily dispositive, the federal appellate courts' views in 1988 are also "relevant," Stringer, 503 U.S. at 237, 112 S.Ct. at 1140, to determining whether Gardner and Skipper compelled the result in Simmons. The federal circuits were uniform in concluding not only that Gardner and Skipper did not compel that result, but that Ramos compelled precisely the opposite--deference to the States' choices about whether to inform juries about parole. In Turner v. Bass, 753 F.2d 342, 354 (4th Cir.1985) (Widener, Hall, Phillips, JJ.) (emphasis added), rev'd on other grounds sub nom. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), our circuit, for example, considered this issue and agreed with the Supreme Court of Virginia:

In arriving at its decision [in Ramos ], the Court noted: "[o]ur conclusion is not intended to override the contrary judgment of state legislatures that capital sentencing juries in their state should not be permitted to consider the governor's power to commute a sentence.30 " In footnote 30 the Court stated that "[m]any state courts have held it improper for the jury to consider or to be informed--through argument or instruction--of the possibility of commutation, pardon, or parole." [Ramos, 463 U.S. at 1013 & n. 30, 103 S.Ct. at 3460 & n. 30.] While not exactly on point, we think Ramos indicates that the Court would decide that while it is constitutionally permissible to instruct the jury on the subject of parole, such an instruction is not constitutionally required. We so hold.

In doing so, our circuit relied upon a decision of the Fifth Circuit, O'Bryan v. Estelle, 714 F.2d 365, 389 (5th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984), which had understood Ramos as we had:

[W]e cannot say that an instruction on parole is constitutionally mandated in a capital case. See California v. Ramos, [463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171] (1983) (instruction informing jurors in capital case that governor has power to commute "life sentence without possibility of parole" but not informing them of equivalent power to commute death sentence not unconstitutional).

We do not find persuasive O'Dell's argument that Turner v. Bass and O'Bryan should be disregarded because they were decided before Skipper. The Skipper footnote addressing due process was merely a reaffirmation of the Gardner plurality, and it did not in any way draw into question Ramos. The reasonableness of the Bass and O'Bryan conclusion (now, under Simmons, held to be wrong) is confirmed by the fact that both circuits, like Virginia's Supreme Court, continued with their holdings regarding instructions on parole long after Skipper. See Peterson v. Murray, 904 F.2d 882, 886-87 (4th Cir.) (Hall, Sprouse, Wilkinson, JJ.) ("[W]e believe that Ramos left to the states the decision concerning what, if anything, a jury should be told about commutation, pardon, and parole." (citing Turner v. Bass )), cert. denied, 498 U.S. 992, 111 S.Ct. 537, 112 L.Ed.2d 547 (1990); Knox v. Collins, 928 F.2d 657, 660 (5th Cir.1991) (rejecting petitioner's claim "that the Constitution mandates instruction on parole in capital cases" and holding that "[t]he decision whether to require such an instruction rests entirely with the state legislature"); cf. United States v. Chandler, 996 F.2d 1073, 1086 (11th Cir.1993) (holding that "[t]he range of possible sentences [including "the possibility of life without parole"] that [petitioner] might receive in the event the jury did not recommend death does not fall within th[e] definition [of "mitigating factors as 'any aspect of a defendant's character or record and any of the circumstances of the offense.' Lockett v. Ohio ...; Skipper v. South Carolina," and so] "the district court was not required to inform the jury of the possible sentences [petitioner] might face"), cert. denied, 512 U.S. 1227, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994).

Nor do we believe it could even be contended that the decisions of the Fourth Circuit, the Fifth Circuit, and of the Virginia Supreme Court, that Ramos left the desirability of instructions on parole eligibility or ineligibility to the authority of the states, were in any way "objectively unreasonable." See Stringer, 503 U.S. at 237, 112 S.Ct. at 1140.

As Butler recognized in holding that Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), announced a new rule, "[t]hat the outcome in Roberson was susceptible to debate among reasonable minds is evidenced further by the differing positions taken by the judges of the Courts of Appeals for the Fourth and Seventh Circuits." 494 U.S. at 415, 110 S.Ct. at 1217.12 Even more so was "the outcome in [Simmons ] ... susceptible to debate among reasonable minds," as "evidenced" by the unanimous disagreement with that outcome by the Fourth and Fifth Circuits, and by the Virginia Supreme Court.

We therefore conclude that the rule in Simmons --that due process requires that a capital defendant be allowed to rebut prosecution arguments of future dangerousness with his ineligibility for parole--was not compelled by existing precedent, and that the state and federal judges who held otherwise in 1988 were not objectively unreasonable in so holding.13 If, as the Court held in Sawyer, Caldwell 's limited exception that states cannot affirmatively provide inaccurate information to juries concerning their role in the sentencing process was not, because of Ramos ' seemingly categorical deference to the states on such matters, compelled, then a fortiori Simmons' more sweeping exception that states must affirmatively correct, or at least allow the correction of, pre-existing juror misconceptions concerning state post-sentencing laws and procedures, was, for the same reason, not compelled either.

It was, at the very least, not unreasonable for jurists to have concluded that the broad deference afforded the states with respect to informing juries of state law regarding commutation and parole had not been withdrawn from them by a mere plurality and a single majority footnote, the latter of which treated the due process holding so dismissively that three Justices criticized the Court as having "unnecessarily abandon[ed]" this grounds for decision, Skipper, 476 U.S. at 11, 106 S.Ct. at 1674 (Powell, J., concurring in the judgment, joined by Burger, C.J., and Rehnquist, J.). Tellingly, this footnote, which O'Dell now maintains compelled the result in Simmons, was not even mentioned in O'Dell's own 151-page federal habeas petition filed in 1992 on his behalf by two major, nationally-recognized law firms, Hunton & Williams, and Paul, Weiss, Rifkind, Wharton & Garrison.

As Justice O'Connor reminded in Johnson v. Texas [509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290]:

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

509 U.S. at 378, 113 S.Ct. at 2675 (O'Connor, J., dissenting, joined by Blackmun, Stevens, and Souter, JJ.). Considering that every Member of the Supreme Court of the United States--the five Members of the Ramos majority and the four dissenters--had seemed to expressly approve, as constitutionally permissible, the practice of the several states of forbidding any argument or instruction to the jury concerning commutation, pardon, or parole, and considering that that same Court rejected a claim virtually identical to that which prevailed in Simmons, if Simmons did not announce a new rule, then we are at a loss to understand how Teague has any real meaning at all.

Accordingly, we hold that Simmons announced a new rule under Teague, and, therefore, that O'Dell cannot avail himself of the rule of Simmons, unless it falls within "one of the two narrow exceptions to the nonretroactivity principle." Caspari, 510 U.S. at 390, 114 S.Ct. at 953.

The first exception applies to those rules that place " 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,' " Teague, 489 U.S. at 307, 109 S.Ct. at 1073 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1171, 1180, 28 L.Ed.2d 388 (1971) (opinion of Harlan, J.)), or "address[ ] a 'substantive categorical guarante[e] accorded by the Constitution,' such as a rule 'prohibiting a certain category of punishment for a class of defendants because of their status or offense.' " Saffle, 494 U.S. at 494, 110 S.Ct. at 1263 (quoting Penry, 492 U.S. at 329, 330, 109 S.Ct. at 2952, 2952). This exception "is clearly inapplicable here," Gilmore, 508 U.S. at 345, 113 S.Ct. at 2119, because the rule announced in Simmons "neither decriminalize[s] a class of conduct nor prohibit[s] the imposition of capital punishment on a particular class of persons [because of their status or offense]." Saffle, 494 U.S. at 495, 110 S.Ct. at 1263-64.

The second exception applies to " 'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal procedure." Id. (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075). This exception "is clearly meant to apply only to a small core of rules requiring observance of those procedures that ... are implicit in the concept of ordered liberty." Graham, 506 U.S. at 478, 113 S.Ct. at 903 (internal quotations omitted). "A rule that qualifies under this exception must not only improve accuracy, but also ' "alter our understanding of the bedrock procedural elements " ' essential to the fairness of a proceeding." Sawyer, 497 U.S. at 242, 110 S.Ct. at 2831 (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075 (quoting Mackey, 401 U.S. at 693, 91 S.Ct. at 1180)). And, "[b]ecause we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, ... it is unlikely that many such components of basic due process have yet to emerge." Teague, 489 U.S. at 313, 109 S.Ct. at 1077. We do not believe that the rule announced in Simmons is on par with the rule announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), a rule the Court has "usually cited ... to illustrate the type of rule coming within the exception," Saffle, 494 U.S. at 495, 110 S.Ct. at 1264; see also Gray, --- U.S. ----, ----, 116 S.Ct. 2074, 2084, 135 L.Ed.2d 457, and we conclude that it does not come within the second exception to Teague.

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

Before the federal district court on habeas, O'Dell raised innumerable constitutional claims. J.A. at 281-84. Nine of those claims were raised for the first time at the state habeas proceeding,15 although, as the state habeas court expressly found, see J.A. at 285, these claims had been ripe for presentation on direct appeal. Virginia law bars the consideration on habeas of trial errors that could be, but were not, raised on direct appeal. Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975). Therefore, the federal district court properly held that these claims were procedurally barred from review on federal habeas under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), absent cause and prejudice.

The Commonwealth also argues that ten additional claims of O'Dell's before the federal habeas court are procedurally barred because the Virginia Supreme Court dismissed as untimely their appeal from the state habeas proceeding.16 After the state habeas court dismissed O'Dell's petition, he filed an "Assignments of Error" with the Virginia Supreme Court. Virginia law, however, requires that a "Petition for Appeal" be filed instead, in order to appeal from a denial of the writ of habeas corpus. By the time O'Dell attempted to correct his error, the three months to file such a petition had passed, and so the Virginia Supreme Court dismissed his Petition for Appeal as untimely under Va. S.Ct. Rule 5:17(a)(1).17 J.A. at 216. That dismissal is sufficient to bar federal habeas review of those claims,18 so long as the dismissal rested upon "adequate and independent state grounds." Wainwright, 433 U.S. at 81, 97 S.Ct. at 2503; see also Murdock v. Memphis, 87 U.S. (20 Wall.) 590, 636, 22 L.Ed. 429 (1874).

The federal habeas court, relying on James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984), and Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991), held that, because the distinction between assignments of error and petitions for appeal was not "firmly established and regularly followed" in capital cases, the Virginia Supreme Court's determination that these claims were procedurally barred as untimely was not a state ground "adequate" to bar federal habeas review. J.A. at 292 (quoting James, 466 U.S. at 348-49, 104 S.Ct. at 1835-36). In so holding, the district court did not conclude, and O'Dell has never maintained, that this distinction has not been "regularly followed";19 rather, the district court determined that the distinction failed the first requirement of James, that it be "firmly established." As a general matter, whenever a procedural rule is derived from state statutes and supreme court rules, as this one is, the rule is necessarily "firmly established."20 The district court in this case, however, concluded that the many Virginia "rules are ambiguous on the procedure for appeals from the denial of state habeas decisions," J.A. at 291, and therefore that the distinction between petitions for appeal and assignments of error was not "firmly established."

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

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

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

Contrary to the district court's conclusion, J.A. at 290, this provision does not at all "indicate[ ] that the same procedural rules that apply to appeals of convictions in death penalty cases also apply to appeals from decisions of circuit courts involving habeas corpus petitions." Rather, the section is a jurisdictional provision; the title of the section even reads, as it pertains to the above-quoted subsection, "[C]ases over which Court of Appeals does not have jurisdiction."21 The provision does not in any way purport to control the form of the appeal for the several categories of cases that are to be appealed directly to the Virginia Supreme Court rather than to the intermediate Court of Appeals. In fact, it expressly provides that those appeals lie "in accordance with other applicable provisions of law." It would be odd, then, to read this section as altering the general rule that "[i]n every case in which the appellate jurisdiction of [the Supreme] Court is invoked, a petition for appeal must be filed." Va. S.Ct. Rule 5:17(a) (emphasis added).

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

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

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

Va. S.Ct. Rule 5:22 (emphasis added). It is plain, however, that this provision relates only to the direct review of death penalty sentences. That Rule 5:22 is confined to capital cases on direct review is confirmed on a number of grounds. First, the very title of the rule is "Special Rule Applicable to Cases in Which Sentence of Death Has Been Imposed." A sentence of death is imposed at the end of the sentencing phase of the trial; in no manner is the sentence imposed by a subsequent denial of the writ of habeas corpus. This distinction is unmistakable in light of section 17-116.05:1, supra, which provides for direct review by the Supreme Court of both "conviction[s] in which a sentence of death is imposed " and "final decision[s], judgment[s] or order[s] of a circuit court involving a petition for a writ of habeas corpus." If the two were identical, the provision of direct Supreme Court jurisdiction for each would be redundant. Additionally, the assignments of error referenced in Rule 5:22 are those "upon which [counsel] intends to rely for reversal of the conviction or review of the sentence of death." Neither remedy is available upon appeal from a denial of a writ of habeas corpus; the denial of the writ can be either affirmed or reversed, but the underlying conviction and sentence are not being reviewed (they are only reviewable on direct appeal). Cf. Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991) ("When a federal district court reviews a state prisoner's habeas corpus petition pursuant to 28 U.S.C. § 2254, it must decide whether the petitioner is 'in custody in violation of the Constitution or laws or treaties of the United States.' The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter." (emphasis added)).

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

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

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

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

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

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

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

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

1. Affirm the sentence of death;