NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


No. 96-6867


on writ of certiorari to the united states court of appeals for the fourth circuit

[June 19, 1997]

Justice Thomas delivered the opinion of the Court.

This case presents the question whether the rule set out in Simmons v. South Carolina, 512 U.S. 154 (1994)--which requires that a capital defendant be permitted to inform his sentencing jury that he is parole ineligible if the prosecution argues that he presents a future danger--was "new" within the meaning of Teague v. Lane, 489 U.S. 288 (1989), and thereby inapplicable to an already final death sentence. We conclude that it was new, and that it cannot, therefore, be used to disturb petitioner's death sentence, which had been final for six years when Simmons was decided.

Helen Schartner was last seen alive late in the evening of February 5, 1985, leaving the County Line Lounge in Virginia Beach, Virginia. Her lifeless body was discovered the next day, in a muddy field across a highway from the lounge. Schartner's head had been laid open by several blows with the barrel of a handgun, and she had been strangled with such violence that bones in her neck were broken and finger imprints were left on her skin. An abundance of physical evidence linked petitioner to the crime scene and crime--among other things, tire tracks near Schartner's body were consistent with petitioner's car, and bodily fluids recovered from Schartner's body matched petitioner. He was indicted on counts of capital murder, rape, sodomy, and abduction (which count was later dismissed).

After a jury trial, petitioner was found guilty on the murder, rape, and sodomy counts. During the subsequent sentencing hearing, the prosecution sought to establish two aggravating factors: that petitioner presented a future danger, and that the murder had been "wanton, vile or inhuman." Evidence was presented that, prior to Schartner's murder, petitioner had been convicted of a host of other offenses, including the kidnaping and assault of another woman while he was on parole, and the murder of a fellow inmate during an earlier prison stint. Petitioner sought a jury instruction explaining that he was not eligible for parole if sentenced to life in prison. The trial judge denied petitioner's request. After the sentencing hearing, the jury found beyond a reasonable doubt that petitioner "would constitute a continuous serious threat to society" and that "his conduct in committing the offense was outrageously wanton, vile, or inhuman." 46 Record 208. The jury recommended that petitioner be sentenced to death. [n.1] The trial judge adopted the jury's recommendation and sentenced petitioner to 40 years' imprisonment each for the rape and sodomy convictions, and to death by electrocution for Schartner's murder. Petitioner appealed to the Supreme Court of Virginia, which affirmed both the conviction and the sentence. O'Dell v. Commonwealth, 234 Va. 672, 364 S. E. 2d 491 (1988). We denied certiorari. O'Dell v. Virginia, 488 U.S. 871(1988). Petitioner's efforts at state habeas relief were unsuccessful, and we again denied certiorari. O'Dell v. Thompson, 502 U.S. 995 (1991).

Petitioner then filed a federal habeas claim. He contended, inter alia, that newly obtained DNA evidence established that he was actually innocent, and that his death sentence was faulty because he had been prevented from informing the jury of his ineligibility for parole. The District Court rejected petitioner's claim of innocence. O'Dell v. Thompson, Civ. Action No. 3:92CV480 (ED Va., Sept. 6, 1994), App. 171-172. But it agreed with petitioner that he was entitled to resentencing under the intervening decision in Simmons v. South Carolina, supra. The District Court described Simmons as holding "that where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, the Due Process Clause of the Fourteenth Amendment requires that the sentencing jury be informed that the defendant is not eligible for parole." App. 198. The court concluded that the Simmons rule was not new and thus was available to petitioner. Because the prosecutor "obviously used O'Dell's prior releases on cross examination, and in his closing argument, to argue that the defendant presented a future danger to society," App. 201 (citations omitted), the District Court held that petitioner was entitled to be resentenced if it could be demonstrated that he were in fact ineligible for parole.

A divided en banc Court of Appeals for the Fourth Circuit reversed. 95 F. 3d 1214 (1996). After an exhaustive review of our precedents, the Court of Appeals majority determined that "Simmons was the paradigmatic `new rule,' " id., at 1218, and, as such, could not aid petitioner. The Fourth Circuit was closely divided as to whether Simmons set forth a new rule, but every member of the court agreed that petitioner's "claim of actual innocence [was] not even colorable." 95 F. 3d, at 1218; see also id., at 1255-1256 (Ervin, J., concurring in part and dissenting in part). We declined review on petitioner's claim of actual innocence, but granted certiorari to determine whether the rule of Simmons was new. 519 U. S. ___ (1996); see also ibid. (Scalia, J., respecting the grant of certiorari).

Before a state prisoner may upset his state conviction or sentence on federal collateral review, he must demonstrate as a threshold matter that the court made rule of which he seeks the benefit is not "new." We have stated variously the formula for determining when a rule is new. See, e.g., Graham v. Collins, 506 U.S. 461, 467 (1993) ("A holding constitutes a `new rule' within the meaning of Teague if it `breaks new ground,' `imposes a new obligation on the States or the Federal Government,' or was not `dictated by precedent existing at the time the defendant's conviction became final' ") (quoting Teague, 489 U. S., at 301) (emphasis in original). At bottom, however, the Teague doctrine "validates reasonable, good faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." Butler v. McKellar, 494 U.S. 407, 414 (1990) (citation omitted). "Reasonableness, in this as in many other contexts, is an objective standard." Stringer v. Black, 503 U.S. 222, 237 (1992). Accordingly, we will not disturb a final state conviction or sentence unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court.

The Teague inquiry is conducted in three steps. First, the date on which the defendant's conviction became final is determined. Lambrix v. Singletary, 520 U. S. ___, ___ (1997) (slip op., at 8). Next, the habeas court considers 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." Ibid. (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)) (alterations in Lambrix). If not, then the rule is new. If the rule is determined to be new, the final step in the Teague analysis requires the court to determine whether the rule nonetheless falls within one of the two narrow exceptions to the Teague doctrine. 520 U. S., at ___. The first, limited exception is for new rules "forbidding criminal punishment of certain primary conduct [and] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." Penry v. Lynaugh, 492 U.S. 302, 330 (1989). The second, even more circumscribed, exception permits retroactive application of "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Graham, supra, at 478 (quoting Teague, 489 U. S., at 311) (internal quotation marks omitted). "Whatever the precise scope of this [second] exception, it 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, supra, at 478 (internal quotation marks omitted).

Petitioner's conviction became final on October 3, 1988, when we declined to review the Virginia Supreme Court's decision affirming his sentence on direct review. Simmons, the rule of which petitioner now seeks to avail himself, was decided in 1994.

In Simmons, the defendant had been found guilty of capital murder for the brutal killing of an elderly woman. The defendant had also assaulted other elderly women, resulting in convictions that rendered him--at least as of the time he was sentenced--ineligible for parole. Prosecutors in South Carolina are permitted to argue to sentencing juries that defendants' future dangerousness is an appropriate consideration in determining whether to affix a sentence of death. 512 U. S., at 162-163 (plurality opinion). Simmons sought to rebut the prosecution's "generalized argument of future dangerousness" by presenting the jury with evidence that "his dangerousness was limited to elderly women," none of whom he was likely to encounter in prison. Id., at 157. Simmons' efforts to shore up this argument by demonstrating to the jury that, under South Carolina law, he was ineligible for parole were rebuffed by the trial court. This Court reversed the judgment of the South Carolina Supreme Court upholding Simmons' death sentence. A plurality of the Court noted that a prosecutor's future dangerousness argument will "necessarily [be] undercut" by "the fact that the alternative sentence to death is life without parole." Id., at 169. The plurality, relying on Gardner v. Florida, 430 U.S. 349 (1977), and Skipper v. South Carolina, 476 U.S. 1 (1986), concluded that "[b]ecause 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." 512 U. S., at 169.

Justice O'Connor, joined by The Chief Justice and Justice Kennedy, concurred in the judgment, providing the dispositive votes necessary to sustain it. The concurrence recognized:

"[The Court has] previously 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.' California v. Ramos, 463 U. S. [992, 1013, n. 30 (1983)]. The decision whether or not to inform the jury of the possibility of early release is generally left to the States." Id., at 176.

The concurrence also distinguished Skipper, noting that Skipper involved an attempt to introduce "factual evidence" regarding the defendant himself, while Simmons "sought to rely on the operation of South Carolina's sentencing law" to demonstrate that he did not present a future danger. 512 U. S., at 176. But the concurrence nonetheless concluded that, "[w]hen the State seeks to show the defendant's future dangerousness," the defendant "should be allowed to bring his parole ineligibility to the jury's attention." Id., at 177.

Petitioner asserts that the Simmons rule covers his case, and that because he was parole ineligible--but not allowed to relay that information to the jury in order to rebut the prosecutor's argument as to his future dangerousness--Simmons requires vacatur of his sentence. Before we can decide whether petitioner's claim falls within the scope of Simmons, we must determine whether the rule of Simmons was new for Teague purposes, and, if so, whether that rule falls within one of the two exceptions to Teague's bar.

We observe, at the outset, that Simmons is an unlikely candidate for "old rule" status. As noted above, there was no opinion for the Court. Rather, Justice Blackmun's plurality opinion, for four Members, concluded that the Due Process Clause required allowing the defendant to inform the jury--through argument or instruction--of his parole ineligibility in the face of a prosecution's future dangerousness argument. 512 U. S., at 168-169. Two members of the plurality, Justice Souter and Justice Stevens, would have further held that the Eighth Amendment mandated that the trial court instruct the jury on a capital defendant's parole ineligibility even if future dangerousness was not at issue. Id., at 172-174 (Souter, J., concurring). Justice Ginsburg, also a member of the plurality, wrote a concurrence grounded in the Due Process Clause. Id., at 174-175. The Chief Justice and Justice Kennedy joined Justice O'Connor's decisive opinion concurring in the judgment, as described above. Id., at 175-178. And, two Justices dissented, arguing that the result did not "fit" the Court's precedents and that it was not, in any case, required by the Constitution. Id., at 180, 185 (opinion of Scalia, J., joined by Thomas, J.). The array of views expressed in Simmons itself suggests that the rule announced there was, in light of this Court's precedent, "susceptible to debate among reasonable minds." Butler, 494 U. S., at 415; cf. Sawyer v. Smith, 497 U.S. 227, 236-237 (1990) (citing, as evidence that Caldwell v. Mississippi, 472 U.S. 320 (1985), announced a new rule, the views of the three Caldwell dissenters). An assessment of the legal landscape existing at the time petitioner's conviction and sentence became final bolsters this conclusion.

Petitioner's review of the relevant precedent discloses the decisions relied upon in Simmons, namely Gardner v. Florida, supra and Skipper v. South Carolina, supra. Petitioner asserts that a reasonable jurist considering his claim in light of those two decisions "would have felt `compelled . . . to conclude that the rule [petitioner] seeks was required by the Constitution.' " Brief for Petitioner 14 (quoting Saffle, 494 U. S., at 488) (emphasis omitted).

In Gardner, the defendant received a death sentence from a judge who had reviewed a presentence report that was not made available to the defendant. Gardner produced no opinion for the Court. A plurality of the Court concluded that the defendant "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. Justice White concurred in the judgment, providing the narrowest grounds of decision among the Justices whose votes were necessary to the judgment. Cf. Marks v. United States, 430 U.S. 188, 193 (1977). He concluded that the Eighth Amendment was violated by a "procedure for selecting people for the death penalty which permits consideration of such secret information relevant to the character and record of the individual offender." 430 U. S., at 364 (internal quotation marks omitted; emphasis added).

In Skipper, the prosecutor argued during the penalty phase that a death sentence was appropriate because the defendant "would pose disciplinary problems if sentenced to prison and would likely rape other prisoners." 476 U. S., at 3. Skipper's efforts to introduce evidence that he had behaved himself in, and made a "good adjustment" to, jail in the time between his arrest and his trial were rejected by the trial court. Ibid. The Court concluded: "[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. Under Eddings [v. Oklahoma, 455 U.S. 104 (1982)], such evidence may not be excluded from the sentencer's consideration." 476 U. S., at 5 (footnote omitted). This holding was grounded, as was Eddings, in the Eighth Amendment. The Court also cited the Due Process Clause, stating that "[w]here the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty" due process required that "a defendant not be sentenced to death `on the basis of information which he had no opportunity to deny or explain.' " 476 U. S., at 5, n. 1 (quoting Gardner, supra, at 362).

Simmons, argues petitioner, presented merely a variation on the facts of Skipper. In each, the prosecution raised the issue of future dangerousness. Skipper was unconstitutionally prevented from demonstrating that he had behaved in prison and thus would not be a danger to his fellow prisoners. Simmons, likewise, says petitioner, was not allowed to inform the jury that he would be in, rather than out of, prison and so could not present a danger to elderly women. Because the rule of Simmons was allegedly set forth in the 1986 decision in Skipper, which in turn relied upon the 1977 decision in Gardner, petitioner argues that his death sentence was flawed when affirmed in 1988, and we may set it aside without running afoul of Teague. [n.2]

Even were these two cases the sum total of relevant precedent bearing on the rule of Simmons, petitioner's argument that the result in Simmons followed ineluctably would not be compelling. Gardner produced seven opinions, none for a majority of the Court. Taking the view expressed in Justice White's opinion concurring in the judgment as the rule of Gardner, see Marks, supra, at 193, the holding is a narrow one--that "[a] procedure for selecting people for the death penalty which permits consideration of . . . secret information relevant to the character and record of the individual offender" violates the Eighth Amendment's requirement of "reliability in the determination that death is the appropriate punishment. " 430 U. S., at 364) (citation and internal quotation marks omitted; emphasis added). Petitioner points to no secret evidence given to the sentencer but not to him. And, the evidence that he sought to present to the jury was not historical evidence about his "character and record," but evidence concerning the operation of the extant legal regime.

In Skipper, too, the evidence that the defendant was unconstitutionally prevented from adducing was evidence of his past behavior. It is a step from a ruling that a defendant must be permitted to present evidence of that sort to a requirement that he be afforded an opportunity to describe the extant legal regime. Cf. Simmons, 512 U. S., at 176 (O'Connor, J., concurring in judgment).

Whatever support Gardner and Skipper, standing alone, might lend to petitioner's claim that Simmons was a foregone conclusion, the legal landscape in 1988 was far more complex. Respondent points to, and the Fourth Circuit majority relied on, two other cases that had been decided by the time petitioner's conviction became final and that bear on its constitutionality: California v. Ramos, 463 U.S. 992 (1983), and Caldwell v. Mississippi, 472 U.S. 320 (1985). In Ramos, the Court upheld an instruction that informed the jury that a defendant sentenced to life in prison without parole could nonetheless be rendered parole eligible if the Governor elected to commute his sentence. The Court concluded that the instruction neither introduced a constitutionally irrelevant factor into the sentencing process, Ramos, 463 U. S., at 1001-1004, nor diverted the jury's attention from the task of rendering an "individualized sentencing determination," id., at 1005. Within the bounds of the Constitution, the Court stated that it would defer to California'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." Id., at 1013. We emphasized, however, that this conclusion was not to be taken to "override the contrary judgment of state legislatures" that capital juries not learn of a governor's commutation power. Ibid. "Many state courts," we pointed out, "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." Id., at 1013, n. 30 (emphasis added); see also ibid. (citing, inter alia, Ga. Code Ann. §17-8-76 (1982), and describing that statute as "prohibiting argument as to possibility of pardon, parole, or clemency") (emphasis added). "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." 463 U. S., at 1014. The dissenters in Ramos disputed the constitutionality of ever informing juries of the governor's power to commute a death sentence. See id., at 1018 (opinion of Marshall, J., joined by Brennan and Blackmun, JJ.); see also id., at 1019-1020 (asserting that consideration by a capital sentencing jury of a defendant's prospects for commutation or parole is unconstitutional).

The general proposition that the States retained the prerogative to determine how much (if at all) juries would be informed about the postsentencing legal regime was given further credence in Caldwell v. Mississippi, supra. In that case, the prosecution and the judge had, the Court concluded, improperly left the jury with the impression that a death sentence was not final because it would be extensively reviewed. Justice Marshall authored the opinion for the Court except for one portion. In that portion, Justice Marshall--writing for a plurality--concluded that, Ramos notwithstanding, sentencing juries were not to be given information about postsentencing appellate proceedings. Justice O'Connor, who provided the fifth vote necessary to the judgment, did not join this portion of Justice Marshall's opinion. She wrote separately, stating that, under Ramos, a State could choose whether or not to "instruc[t] the jurors on the sentencing procedure, including the existence and limited nature of appellate review," so long as any information it chose to provide was accurate. 472 U. S., at 342 (O'Connor, J., concurring in part and concurring in judgment).

In light of Ramos and Caldwell, we think it plain that, a reasonable jurist in 1988 would not have felt compelled to adopt the rule later set out in Simmons. As noted above, neither Gardner nor Skipper involved a prohibition on imparting information concerning what might happen, under then extant law, after a sentence was imposed. Rather, the information at issue in each case was information pertaining to the defendant's "character and record." Although the principal opinions in Simmons found Skipper (which, in turn, relied on Gardner) persuasive, Justice O'Connor distinguished Skipper from the facts presented in Simmons on this very ground, see 512 U. S., at 176 (opinion concurring in judgment), suggesting that the rule announced in Simmons was not inevitable. See also id., at 183 (Scalia, J., dissenting).

That distinction--between information concerning state postsentencing law on the one hand and evidence specifically related to the defendant on the other--was also at the heart of Ramos and Caldwell. In Ramos, the majority concluded that California had reasonably chosen to provide some, limited, postsentence information to the capital sentencing jury--though it noted that many other States had elected just the opposite. The principal dissent in Ramos would have forbidden the provision of any information about postsentence occurrences for the very reason that it did not constitute evidence concerning the defendant's "character or the nature of his crime." 463 U. S., at 1022 (opinion of Marshall, J.). In Caldwell, the plurality and Justice O'Connor contested whether the fact that "appellate review is available to a capital defendant sentenced to death" was "simply a factor that in itself is wholly irrelevant to the determination of the appropriate sentence" (as the plurality concluded, 472 U. S., at 336), or whether provision of that information was a constitutional "policy choice in favor of jury education" (as Justice O'Connor concluded, id., at 342 (opinion concurring in part and concurring in judgment)).

A reasonable jurist in 1988, then, could have drawn a distinction between information about a defendant and information concerning the extant legal regime. It would hardly have been unreasonable in light of Ramos and Caldwell for the jurist to conclude that his State had acted constitutionally by choosing not to advise its jurors as to events that would (or would not) follow their recommendation of a death sentence, as provided by the legal regime of the moment. Indeed, given the sentiments, expressed in Justice Marshall's Ramos dissent and Caldwell plurality, that information about postsentence procedures was never to go to the jury and given that the decision whether to provide such information had been described by the Ramos majority opinion and Justice O'Connor's concurrence in Caldwell as a "policy choice" left to the States, the reasonable jurist may well have concluded that the most surely constitutional course, when confronted with a request to inform a jury about a defendant's parole eligibility, was silence.

Teague asks state court judges to judge reasonably, not presciently. See Stringer v. Black, 503 U. S., at 244 (Souter, J., dissenting). In Simmons, the Court carved out an exception to the general rule described in Ramos by, for the first time ever, requiring that a defendant be allowed to inform the jury of postsentencing legal eventualities. A 1988 jurist's failure to predict this cannot, we think, be deemed unreasonable. Accordingly, the rule announced in Simmons was new, and petitioner may not avail himself of it unless the rule of Simmons falls within one of the exceptions to Teague's bar. [n.3]

Petitioner contends that, even if it is new, the rule of Simmons falls within the second exception to Teague, which permits retroactive application of " `watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Graham, 506 U. S., at 478 (quoting Teague, 489 U. S., at 311). Petitioner describes the "practice condemned in Simmons" as a "shocking one." Brief for Petitioner 33. The rule forbidding it, we are told, is "on par" with Gideon v. Wainwright, 372 U.S. 335 (1963)--which we have cited as an example of the sort of rule falling within Teague's second exception, see Saffle, 494 U. S., at 495--because "both cases rest upon this Court's belief that certain procedural protections are essential to prevent a miscarriage of justice," Brief for Petitioner 35 (citations omitted). We disagree. [n.4] Unlike the sweeping rule of Gideon, which established an affirmative right to counsel in all felony cases, the narrow right of rebuttal that Simmons affords to defendants in a limited class of capital cases has hardly " ` "alter[ed] our understanding of the bedrock procedural elements" ' essential to the fairness of a proceeding." Sawyer, 497 U. S., at 242 (quoting Teague, supra, at 311, quoting, in turn, Mackey v. United States, 401 U.S. 667, 693 (1971) (Harlan, J., concurring in judgments in part and dissenting in part) (emphasis in Teague)). Simmons possesses little of the "watershed" character envisioned by Teague's second exception.

For the reasons stated herein, the judgment of the Court of Appeals is affirmed.

It is so ordered.


1 The Virginia Supreme Court concluded that the jury's recommendation of a death sentence was based only on the first aggravating factor--petitioner's future dangerousness. O'Dell v. Commonwealth, 234 Va. 672, 706, 364 S. E. 2d 491, 510 (1988). Only that aggravating factor is before us.

2 Petitioner makes much of language in the Simmons plurality opinion that the "principle announced in Gardner was reaffirmed in Skipper, and it compels our decision today." Simmons v. South Carolina, 512 U.S. 154, 164-165 (1994) (emphasis added). While this language, expressing the view of four Justices, is certainly evidence tending to prove that the rule of Simmons was not new--i.e., that it was "dictated" by then existing precedent--it is far from conclusive. We have noted that "[c]ourts frequently view their decisions as being `controlled' or `governed' by prior opinions even when aware of reasonable contrary conclusions reached by other courts." Butler v. McKellar, 494 U.S. 407, 415 (1990).

3 Our conclusion that the rule of Simmons was new finds support in the decisions of the state courts and the lower federal courts. See Butler, 494 U. S., at 415. By 1988, no state or federal court had adopted the rule of Simmons. In fact, both before and after Skipper v. South Carolina, 476 U.S. 1 (1986), several courts had upheld against constitutional challenge practices similar, if not identical, to that later forbidden in Simmons. See, e.g., Turner v. Bass, 753 F. 2d 342, 354 (CA4 1985), rev'd on other grounds sub nom. Turner v. Murray, 476 U.S. 28 (1986); O'Bryan v. Estelle, 714 F. 2d 365, 389 (CA5 1983), cert. denied sub nom. O'Bryan v. McKaskle, 465 U.S. 1013 (1984); King v. Lynaugh, 850 F. 2d 1055, 1057 (CA5 1988) (en banc), cert. denied, 488 U.S. 1019 (1989); Peterson v. Murray, 904 F. 2d 882, 886-887 (CA4), cert. denied, 498 U.S. 992 (1990); Knox v. Collins, 928 F. 2d 657, 660, 662 (CA5 1991); see also Turner v. Commonwealth, 234 Va. 543, 551-552, 364 S. E. 2d 483, 487-488, cert. denied, 486 U.S. 1017 (1988); Mueller v. Commonwealth, 244 Va. 386, 408-409, 422 S. E. 2d 380, 394 (1992), cert. denied, 507 U.S. 1043 (1993). In addition, several of the courts to consider the question have, along with the Fourth Circuit in this case, concluded that the rule of Simmons was new. See, e.g., Johnson v. Scott, 68 F. 3d 106, 111-112, n. 11 (CA5 1995), cert. denied sub nom. Johnson v. Johnson, 517 U. S. ___ (1996); Mueller v. Murray, 252 Va. 356, 365-366, 478 S. E. 2d 542, 548 (1996); Commonwealth v. Christy, 540 Pa. 192, 215-217, 656 A. 2d 877, 888-889, cert. denied, 516 U. S. ___ (1995).

4 It is by no means inevitable that, absent application of the rule of Simmons, "miscarriage[s] of justice" will occur. We note, for example, that at the time he was sentenced to death for Helen Schartner's murder, petitioner had already been convicted of a murder committed while he was in prison. Informing his sentencing jury that petitioner would spend the rest of his days in prison would not, then, necessarily have rebutted an argument that he presented a continuing danger.