Cite as: 530 U. S. 156 (2000)
Stevens, J., dissenting
be sufficient if, rather than having the possibility of a recent conviction being set aside by post-trial motion, an old prior conviction could be set aside on appeal before judgment had been entered on the Domino's Pizza verdict? Or under a State's postconviction habeas procedure? More to the point, if the mere availability of a post-trial procedure to set aside the verdict is enough, is the same true as well for the mere availability of an appeal or state habeas review, so long as the time had not expired for either? Old convictions necessary for a defendant's parole ineligibility can be set aside under these procedures as well. And under each procedure those prior convictions could potentially be set aside at the crucial moment.33
It is easy, in this case, to be distracted by the lack of an entry of judgment and the recentness of Ramdass' prior convictions. As the above examples demonstrate, however, these facts tend to detract from, rather than elucidate, the relevant issue. If Simmons is inapplicable because at least one of the defendant's prior convictions could be set aside before sentencing (or before the third strike becomes final, or before whatever time the plurality might think is the crucial moment), then it should not matter, under that reasoning, whether it is set aside by post-trial motion, on appeal, or through state (or federal) postconviction relief. What's more, the plurality's reasoning would hold true so long as these procedures are simply available. Accordingly, it would not matter whether a defendant's prior strikes were a day old, a year old, or 100 years old. Nor would it matter that judgment had been entered on those prior convictions. So long as such procedures for setting aside old convictions
33 It is true that these old convictions—like the Pizza Hut conviction— have had an entry of judgment and thus would count as strikes. But under state law, a defendant must have three strikes at the same time to be parole ineligible. If a strike were set aside before the defendant has all three, he is just as much parole eligible as he would be if judgment had never been entered on the verdict.
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