Cite as: 530 U. S. 156 (2000)
Stevens, J., dissenting
phase because the parole board's determination had not yet been made.7 Therefore, the fact that parole ineligibility under state law had not been determined at the time of sentencing is simply not a fact that distinguishes Simmons from Ramdass' case.8
7 "First and foremost, at the time of the trial, no state agency had ever determined that Simmons was going to be serving a sentence of life without the possibility of parole, despite the fact that he had earlier pled guilty and been sentenced to a violent crime prior to this trial. The importance of that distinction is that the power to make that determination did not rest with the judiciary, but was solely vested in an executive branch agency, the South Carolina Board of Probation, Parole and Pardon Services." Brief for Respondent in Simmons v. South Carolina, O. T. 1993, No. 92-9059, p. 95 (emphasis added). The plurality also complains that "a state court [need not] glean information from the record" in Simmons. Ante, at 168. That is true, but it is equally true that a state court cannot pretend that a fact creates a material distinction simply because it was not expressly raised and rejected by this Court. Moreover, it is evident in the opinion itself that Simmons' parole-ineligibility status had not been definitively and legally determined yet at the time of sentencing. See n. 8, infra.
8 The plurality contends that in Simmons "the defendant had 'conclusively established' his parole ineligibility at the time of sentencing." Ante, at 167 (quoting Simmons, 512 U. S., at 158 (plurality opinion)); see also ante, at 171. What Simmons in fact said was that no one questioned that the defendant had all the facts necessary to be found ineligible at some future date. It does not indicate that a legal determination of the defendant's parole ineligibility had already been definitively made by the parole board. This is clear in the plurality's citation of the South Carolina parole statute, under which a defendant's parole status is determined by the parole board at a later date. See supra, at 186. This is also clear from the fact that the plurality relied upon the testimony of the parole board's attorneys, 512 U. S., at 158-159, demonstrating the plurality's recognition that it was the parole board that would ultimately determine Simmons' parole eligibility. Furthermore, the plurality's statement that Simmons was "in fact ineligible," id., at 158 (emphasis added), as opposed to "legally" ineligible or ineligible "as a matter of law," clearly distinguished between the facts as known at that time (which indicated how Simmons' status would, in all likelihood, ultimately be determined), and the legal determination of status (which would be formally determined at
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