O'Dell v. Netherland, 521 U.S. 151, 5 (1997)

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Cite as: 521 U. S. 151 (1997)

Opinion of the Court

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 was 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

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