SCOTUS: Arizona Supreme Court’s Interpretation of State Procedural Rule so ‘Novel and Unforeseeable’ It’s Not ‘Adequate’ to Preclude SCOTUS Review of Federal Death-Penalty Claim
by Richard Resch
In a 5-4 decision written by Justice Sotomayor, the Supreme Court of the United States held that the Arizona Supreme Court’s holding that Lynch v. Arizona, 578 U.S. 613 (2016), was not a “significant change in the law” is one of those rare cases in which the state-court judgment is based upon such a novel and unforeseeable interpretation of a state-court procedural rule that the decision does not constitute an adequate state procedural ground to preclude review by the U.S. Supreme Court.
John Motenegro Cruz argued at the aggravation/mitigation phase of his capital trial and on direct appeal that his due process rights under Simmons v. South Carolina, 512 U.S. 154 (1994) (plurality opinion), had been violated by the trial court’s refusal to allow him to advise the jury that under Arizona law the only sentencing alternative to a death sentence is life without the possibility of parole.
Simmons held that when a defendant’s future dangerousness is at issue but state law precludes his release on parole, due process requires that the sentencing jury be informed of the defendant’s ineligibility for parole. The Simmons Court chided: “The State may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole.”
The U.S. Supreme Court repeatedly reaffirmed its holding in Simmons prior to Cruz’s trial. See Shaffer v. South Carolina, 532 U.S. 36 (2001); Ramdass v. Angelone, 530 U.S. 156 (2000) (plurality opinion); Kelly v. South Carolina, 534 U.S. 246 (2002).
The same year Simmons was decided, Arizona modified its parole statute, abolishing parole for all felonies committed after 1993. Ariz. Rev. Stat. Ann. § 41-1604.09(I)(1) (1994). Although the state’s capital sentencing statute continued to provide for two alternatives to death – (1) “natural life,” which prohibits release “on any basis” and (2) “life” with the possibility of “release” after at least 25 years – the only “release” actually available for defendants convicted of a capital crime after 1993 was, and remains, executive clemency because of the amended parole statute.
Despite the U.S. Supreme Court’s unambiguous holding in Simmons and its progeny together with the elimination of parole for capital defendants in Arizona, the state Supreme Court held – in a line of cases that began with Cruz’s direct appeal – that Simmons does not apply in Arizona because the state’s sentencing scheme is materially distinguishable from the one at issue in Simmons. The state Supreme Court’s line of cases rejecting the applicability of Simmons culminated in State v. Lynch, 357 P.3d 119 (Ariz. 2015), in which the court refused to apply Simmons because the capital defendant could receive life but still be eligible for executive clemency after 25 years.
The U.S. Supreme Court flatly rejected the state Supreme Court’s decision in Lynch and reversed, explaining that “Simmons expressly rejected the argument that the possibility of clemency diminishes a capital defendant’s right to inform a jury of his parole ineligibility.” Lynch v. Arizona, 578 U.S. 613 (2016). Eliminating any doubt or confusion, the Lynch Court held that Simmons does in fact apply with full force in Arizona.
In 2005, Cruz was convicted and sentenced to death for murdering a Tucson police officer. He was convicted more than a decade after Simmons was decided, and his conviction became final prior to the U.S. Supreme Court’s decision in Lynch.
At Cruz’s trial, the court incorrectly advised the jury that one of the three possible penalties for Cruz was life imprisonment but with the possibility of release after 25 years – the other two penalties being death by lethal injection and life imprisonment with no possibility of release on any basis. The court instructed the jurors that they could choose only between life imprisonment or death. If they opt for life, then the court would choose between the two life imprisonment options. The jurors chose death. But afterwards, without any prompting by Cruz, three jurors issued a press release, stating that it was a “gut-wrenching decision” and that they would have preferred life without the possibility of parole but were not given that option.
Cruz moved for a new trial, arguing once again that the jury was not provided with “an accurate and complete understanding of the consequences of a non-death verdict.” The trial court, getting the law wrong for a second time, denied the motion, stating that the jury had been “correctly instructed on the law.” On direct appeal, the state Supreme Court repeated the trial court’s misapplication of the law that Simmons does not apply in Arizona and denied Cruz’s appeal. Because Cruz raised his Simmons claim on direct appeal, he was barred from raising it again in his initial state postconviction petition. See Arizona Rules of Criminal Procedure (“Rule”) 32.2(a)(2).
However, after Lynch was decided, Cruz filed a successive motion for state postconviction relief under Rule 32.1(g), which authorizes a successive petition if “there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.” He argued that Lynch represents a “significant change in the law” because it “had transformative effects on previously binding Arizona law.”
The state Supreme Court denied relief, holding that Lynch was “not a significant change in the law.” Incredibly, the Supreme Court based its conclusion on the rationale that “the law relied upon by the [U.S.] Supreme Court in [Lynch] – Simmons – was clearly established at the time of Cruz’s trial … despite the misapplication of that law by the Arizona courts.” (emphasis added) Furthermore, without any citation to prior case law, the state Supreme Court declared that Rule 32.1(g) requires “a significant change in the law, whether state or federal – not a significant change in the application of the law.” (emphasis in original)
Cruz petitioned the U.S. Supreme Court for certiorari, which the Court granted to answer the question “whether the Arizona Supreme Court’s holding that Rule 32.1(g) precluded postconviction relief is an adequate and independent state-law ground for the judgment.”
The Court began its analysis by reviewing the independent and adequate state grounds doctrine, which provides that the U.S. Supreme Court will not review a question of federal law decided by a state court if that state court decision is based on a state law ground that is “independent of the federal question and adequate to support the judgment.” Lee v. Kemna, 534 U.S. 362 (2002) (quoting Coleman v. Thompson, 501 U.S. 722 (1991)). The Court advised that the sole focus of its current inquiry is on the adequacy prong.
The Court explained that the “question whether a state procedural ruling is adequate is itself a question of federal law,” Beard v. Kindler, 558 U.S. 53 (2009), and that generally a violation of a state procedural rule that is “‘firmly established and regularly followed’ … will be adequate to foreclose review of a federal claim.” Lee. However, there may be “exceptional cases” in which a “generally sound rule” is applied in a manner that “renders the state ground inadequate to stop consideration of a federal question.” Id. The Court declared that this is one of those exceptional cases.
The Court stated the rule that “an unforeseeable and unsupported state-court decision on a question of state procedure does not constitute an adequate ground to preclude this Court’s review of a federal question” applies in this case. It remarked that the rule is “reserved for the rarest of situations.” Basically, the rule bars new procedural requirements of state law to preclude review by the U.S. Supreme Court with respect to individuals who relied upon prior state case law in asserting their federal constitutional rights in state courts. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).
The state procedural rule at issue in this case is Rule 32.1(g), which allows defendants to file a successive postconviction petition when there has been “a significant change in the law.” Arizona courts interpret this phrase as requiring a “transformative event, a ‘clear break from the past.’” State v. Shrum, 203 P.3d 1175 (Ariz. 2008) (quoting State v. Slemmer, 823 P.2d 41 (Ariz. 1991)). The Shrum Court elaborated that the “archetype of such a change occurs when an appellate court overrules previously binding case law.”
Applying the foregoing principles, the Court stated that Arizona courts should have readily concluded that Lynch was a “significant change in the law” under Rule 32.1(g) because it overruled binding state precedent. That is, prior to Lynch, Arizona courts held that capital defendants did not have the right to inform jurors about their parole ineligibility. But after Lynch, Arizona courts should have undoubtedly recognized that capital defendants have a due process right to inform jurors accordingly, the Court explained.
Despite the U.S. Supreme Court’s clear and unequivocal holding in Simmons and Lynch, the Arizona Supreme Court still held that Lynch was not “a significant change in the law” because it was based upon Simmons, which “was clearly established at the time of Cruz’s trial … despite the misapplication of that law by the Arizona courts.” It explained that “Rule 32.1(g) requires a significant change in the law … not a significant change in the application of the law.” (emphasis in original)
The Court declared that the state Supreme Court’s treatment of Rule 32.1(g) in this case is completely new and conflicts with its own prior case law. The State failed to cite a single case in which the overturning of binding state precedent did not satisfy Rule 32.1(g). Similarly, the State failed to identify any previous decisions that distinguished between a “change in the law” and a “change in the application of the law.” The Court characterized the state Supreme Court’s application of Rule 32.1(g) in this case as “the opposite of firmly established and regularly followed.” Thus, the Court held that “the Arizona Supreme Court’s application of Rule 32.1(g) to Lynch was so novel and unfounded that it does not constitute an adequate state procedural ground.”
Accordingly, the Court vacated the judgment of the Arizona Supreme Court and remanded for further proceedings consistent with its opinion. See: Cruz v. Arizona, 143 S. Ct. 650 (2023).
Writer’s note: At oral arguments, Justice Kagan described the impenetrable absurdity of Arizona’s position as follows: “I think Kafka would have loved this. Cruz loses his Simmons claims on direct appeal because the Arizona courts say point-blank Simmons has never applied in Arizona. And then, he loses the next time around because the Arizona courts say Simmons always applied [but the state courts, including the state Supreme Court, just misapplied Simmons] … I mean, [it’s a heads I win, tails you lose situation]….”
Prior to the Court’s opinion in this case, it was effectively impossible for Cruz and the approximately 30-other similarly situated capital defendants in Arizona who were sentenced under the state’s unconstitutional sentencing scheme to successfully challenge the violation of their due process rights under Simmons. This opinion enables Cruz to renew his appeal for a new penalty phase trial, and it could potentially open the door for the other 30 capital defendants.
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