Cite as: 530 U. S. 156 (2000)
Stevens, J., dissenting
trolled entirely by the technical minutiae of state law, even though it looked at state law for determining when the right to rebut the State's argument was triggered.
It makes perfect sense for Simmons' due process right to make reference to, yet not be wholly controlled by, state law. On the one hand, Simmons is a limited exception to Ramos, and as such it is confined to where the defendant will be parole ineligible—hence the reference to state law. On the other hand, Simmons is a constitutional requirement imposed on the States. If its applicability turned entirely on a defendant's technical status under state law at the time of sentencing, the constitutional requirement would be easily evaded by the artful crafting of a state statute. For example, if Virginia can define "conviction" to require an entry of judgment, it could just as easily define "conviction" to require that all final appeals be exhausted, or that all state and federal habeas options be foreclosed. And by delaying when the defendant's convictions count as strikes for parole ineligibility purposes until some point in time well after the capital murder sentencing phase, the State could convert the Simmons requirement into an opt-in constitutional rule.30
Simmons' applicability is therefore a question of federal law, and that case makes clear that the federal standard essentially disregards future hypothetical possibilities even if they might make the defendant parole eligible at some
30 This is true even if one accepts the premise that Simmons requires us to presume that the most recent conviction will ultimately count as a strike regardless of what could happen under state law after the sentencing hearing. (The Virginia Supreme Court apparently adopted that view, which explains why that court counted the capital murder verdict as a strike at the time of the sentencing hearing, even though judgment had not yet been entered on the verdict. See supra, at 184.) Even accepting that premise, delaying the determination of parole ineligibility status until after the sentencing hearing would still mean that the defendant's other prior convictions would not count as strikes until well after the capital murder sentencing phase.
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