204
Stevens, J., dissenting
from prison. Ante, at 177. This evidence is thinner than gossamer.32
What's more, the plurality's assessment of certainties is internally inconsistent. As explained earlier, the standard for setting aside a verdict post-trial is the same regardless of whether judgment has been entered. Accordingly, if the verdict was uncertain in the Domino's Pizza case, that was also true for the Pizza Hut conviction. At the time of the sentencing hearing in the capital murder case, the deadline for filing a motion under the Rule had not expired for either the Domino's Pizza verdict or the Pizza Hut conviction. (The time for filing a motion for the Pizza Hut conviction expired on February 12, 21 days after judgment had been entered on that verdict. This was 13 days after the sentencing phase in the capital murder case ended.) Because there was a possibility that the Pizza Hut conviction could have been set aside before judgment was entered on the Domino's Pizza verdict (and therefore before Ramdass technically became parole ineligible), the certainty of the verdict was just as much in doubt for that conviction. The plurality, however, finds the Domino's Pizza verdict uncertain yet casts no doubt on the Pizza Hut conviction. How can this possibly be consistent? The plurality never says.
Finally, the plurality's approach is entirely boundless. If the kind of "hypothetical future developmen[t]" at issue here is sufficient to make Simmons inapplicable, would it
32 The plurality also attempts to distinguish the hypotheticals in Simmons from those in Ramdass' case by pointing out that the former hypotheticals, if they happened, would do so after sentencing. Ante, at 168- 169. But the entire point of the hypotheticals is not whether they could occur before sentencing, but whether they could occur before the defendant was technically declared parole ineligible. In Simmons, that was true right up until the parole board made its determination. Simply because the nuances of state law may create an opportunity for undermining parole ineligibility earlier on does not make the possibility any less hypothetical or undermine the ineligibility any less; the same principle is at work either way.
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