187 F.3d 396 (4th Cir. 1999), 98-30, Ramdass v. Angelone

Docket Nº:98-30 No. 98-32 (CA-96-831-2).
Citation:187 F.3d 396
Party Name:BOBBY LEE RAMDASS, Petitioner-Appellee, v. RONALD J. ANGELONE, Director, Virginia Department of Corrections, Respondent-Appellant. BOBBY LEE RAMDASS, Petitioner-Appellant, v. RONALD J. ANGELONE, Director, Virginia Department of Corrections, Respondent-Appellee.
Case Date:August 03, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 396

187 F.3d 396 (4th Cir. 1999)

BOBBY LEE RAMDASS, Petitioner-Appellee,

v.

RONALD J. ANGELONE, Director, Virginia Department of Corrections, Respondent-Appellant.

BOBBY LEE RAMDASS, Petitioner-Appellant,

v.

RONALD J. ANGELONE, Director, Virginia Department of Corrections, Respondent-Appellee.

No. 98-30 No. 98-32 (CA-96-831-2).

United States Court of Appeals, Fourth Circuit

August 3, 1999

Argued: May 4, 1999.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

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COUNSEL ARGUED: Katherine P. Baldwin, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. F. Nash Bilisoly, IV, VANDEVENTER BLACK, L.L.P., Norfolk, Virginia, for Appellee. ON BRIEF: Mark J. Earley, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. John M. Ryan, VANDEVENTER BLACK, L.L.P., Norfolk, Virginia; Michele J. Brace, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Richmond, Virginia, for Appellee.

Before WIDENER, MURNAGHAN, and NIEMEYER, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Judge Niemeyer wrote the opinion, in which Judge Widener joined. Judge Murnaghan wrote an opinion concurring in part and dissenting in part.

OPINION

NIEMEYER, Circuit Judge:

A Fairfax County, Virginia court convicted Bobby Lee Ramdass of capital murder and sentenced him to death for the murder of Mohammed Kayani during the robbery of the convenience store where Kayani was a clerk. On Ramdass' petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254, the district court granted the writ and ordered the state court to resentence Ramdass, concluding that the state court had denied Ramdass due process by denying him the opportunity established by Simmons v. South Carolina, 512 U.S. 154 (1994), to tell the jury during sentencing that he was ineligible for parole. The

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district court rejected the other grounds advanced by Ramdass in his petition.

Accepting the Virginia Supreme Court's state law determination that Ramdass was not, at the time of his sentencing proceedings, legally ineligible for parole, we conclude that Simmons was not applicable. Accordingly, we reverse the district court's order insofar as it concluded that Simmons required the writ to issue. Finding no error in the district court's disposition of the other issues, we affirm the remaining portion of the district court's order.

I

The facts of Kayani's murder are related by the Virginia Supreme Court as follows:

During the night of September 1 and early morning of September 2, 1992, Ramdass and Darrell Wilson, both armed with pistols, were returning home in a car with three other men, Shane Singh, Edward O'Connor, and Candelerio Ramirez, after abandoning a plan to rob persons at a Roy Rogers restaurant in Fairfax County. On the way, Ramdass suggested that they rob persons at a 7-Eleven store on Buelah Street in Fairfax County.

Accordingly, near one o'clock on the morning of September 2, the five men entered the 7-Eleven store. Ramdass entered first and "drew" his pistol on Kayani, a 7-Eleven clerk who was behind the cash register. Wilson, who also displayed his pistol, ordered all the customers to lie on the floor and not look at him. The other three men, who were unarmed, took the customers' wallets, money from the cash register, and cigarettes and lottery tickets from the store's stock.

After Ramdass ordered Kayani to open the safe, Kayani knelt down next to the safe and unsuccessfully tried to open it. Ramdass squatted next to Kayani and yelled at him to open the safe "or I'll blow your f-----head off." Wilson fired his pistol at one of the customers on the floor. Immediately thereafter, Singh, standing behind Ramdass, saw Ramdass shoot Kayani in the head on his second attempt to get the weapon to fire.

Just after Ramdass shot Kayani, Ramirez returned from a back room in the store. Ramirez saw Ramdass laughing as he stood over Kayani's body. Later, Ramirez heard Ramdass say that he shot Kayani because he "took too long." Shortly thereafter, Ramirez opened the front door, and Wilson, Singh, and O'Connor ran out. As Ramirez held the door open, he urged Ramdass to "[c]ome on." However, Ramdass was "clicking the gun at the people on the floor" and told Ramirez to "[s]hut up or I'll put one in you." One of the customers also heard the clicking of the gun as Ramdass left. When they got in the car, Ramirez heard Ramdass ask Wilson, "Why didn't you get rid of the people on the floor?" After the men divided the robbery proceeds at Singh's home, Ramdass told Ramirez, "Don't tell anybody about this [or] I'll kill you and I'll kill your whole family." Singh, a co-owner of the gun with Ramdass, testified that the gun would not fire unless held at a certain angle because the "bullets" in the chamber were not the right size for the gun. Julian Jay Mason, Jr., a forensic scientist specializing in firearms identification, later examined and test fired the gun. Mason testified that the 9 millimeter cartridges Ramdass used in the gun were smaller than the 38 caliber cartridges specified for the gun. Therefore, when the gun's muzzle was pointed down, the 9 millimeter cartridges slid too far forward to be struck by the firing pin. Mason further testified that when the muzzle was pointed up, the cartridge slid back closer to the firing pin, and the gun could be fired.

Ramdass v. Commonwealth ("Ramdass I "), 437 S.E.2d 566, 568-69 (Va. 1993) (footnote omitted). Following indictment

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and a trial, a Fairfax County jury found Ramdass guilty of capital murder in the commission of armed robbery as well as illegal use of a firearm. Ramdass had earlier pled guilty to one count of robbery. At the sentencing phase of trial, the Commonwealth of Virginia sought the death penalty, arguing that Ramdass presented "a continuing serious threat to society" -the "future dangerousness" predicate for imposition of the death penalty. See Va. Code Ann. § 19.2-264.2. In support of this argument, the Commonwealth presented evidence of Ramdass' history of theft-related crimes beginning at age 14 and his pattern of recidivism during periods of escape or probation. More specifically, the prosecution detailed how, within three months of his release on mandatory parole after serving four years of a seven-year sentence for robbery, Ramdass committed a series of at least six armed robberies. The first two robberies occurred on August 25, 1992, when Ramdass robbed a Pizza Hut in Fairfax County, abducting a woman and hitting a man. Four days later, he robbed a clerk at an apartment-hotel in Alexandria and struck him in the head with a gun. On August 30, 1992, he shot and robbed a cab driver. Later that evening, he robbed a clerk at a Domino's Pizza in Arlington. Finally, Ramdass killed Mohammed Kayani on September 2, 1992, during the sixth robbery in this eight day spree. See Ramdass I, 437 S.E.2d at 574. Ramdass' counsel responded to the prosecution's argument by asserting that "Ramdass will never be out of jail. Your sentence today will insure that if he lives to be a hundred and twenty two, he will spend the rest of his life in prison."

During sentencing deliberations, the jury asked:"if the Defendant is given life, is there a possibility of parole at some time before his natural death?" While recognizing that Virginia law did not permit a sentencing jury to be informed of the defendant's parole eligibility, Ramdass' counsel nevertheless maintained that "the [jurors'] question itself implies that they have a perception that if they give a life sentence that he will be out in a very short period of time" and that it was necessary to inform the jury otherwise with "some kind of language that would balance out that perception." Over defense counsel's objection, the trial judge told the jurors that they"should impose such punishment as [they] feel is just under the evidence and within the instructions of the Court" and that they "are not to concern [them]selves with what may happen afterwards." The jury returned a verdict recommending death on the capital murder count, based upon Ramdass' "future dangerousness," and recommending four years imprisonment on the firearm count.

At the sentencing hearing in April 1993, Ramdass' counsel urged the court to impose a sentence of life in prison instead of death in light of Ramdass' ineligibility for parole under Virginia's threestrikes provision.1 See Va. Code Ann. § 53.1-151(B1). Defense counsel proffered to the court that three jurors had told him that they would have imposed a life sentence rather than death if they had known that Ramdass would not be eligible for parole. Rejecting defense counsel's request, the court sentenced Ramdass to death.

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On direct appeal to the Virginia Supreme Court, Ramdass argued, inter alia, that his death sentence violated the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because the trial judge prevented him from telling the jury that he was parole ineligible, a potentially mitigating factor. Rejecting that argument, the Virginia Supreme Court stated that Ramdass had advanced"no persuasive reason" to modify prior Virginia precedent holding that "a jury should not hear evidence of parole eligibility or ineligibility because it is not a relevant consideration in fixing the appropriate sentence." Ramdass I, 437 S.E.2d at 573 (citing Wright v. Commonwealth, 427 S.E.2d 379, 392 (Va. 1993)).

From that court's decision, Ramdass filed a petition for writ of certiorari with the United States Supreme Court. While that petition was pending, the...

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