Opposition Brief — Leroy D. Cropper, Petitioner v. Arizona

No. 19-1100

In the

Supreme Court of the United States

__________________

LEROY D. CROPPER,

v.

STATE OF ARIZONA,

__________________

Petitioner,

Respondent.

On Petition for Writ of Certiorari

to the Superior Court of Arizona, Maricopa County

__________________

BRIEF IN OPPOSITION

__________________

MARK BRNOVICH

Attorney General

ORAMEL H. (O.H.) SKINNER

Solicitor General

LACEY STOVER GARD

Chief Counsel

LAURA P. CHIASSON

Assistant Attorney General

(Counsel of Record)

Capital Litigation Section

400 W. Congress, Bldg. S-215

Tucson, Arizona 85701-1367

(520) 628-6520

Laura.Chiasson@azag.gov

Counsel for Respondent

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

CAPITAL CASE

QUESTION PRESENTED FOR REVIEW

Did trial counsel render ineffective assistance by

failing to request an instruction pursuant to Simmons

v. South Carolina, 512 U.S. 154 (1994), where state law

at the time held that Simmons did not apply?

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR DENYING THE WRIT . . . . . . . . . . 5

I. CROPPER

ALLEGES

INEFFECTIVE

ASSISTANCE (NOT SIMMONS ERROR), AND

IN ANY EVENT ARIZONA ADHERES TO

SIMMONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. T H E

POST-CONVICTION

COURT

CORRECTLY DETERMINED THAT

CROPPER’S COUNSEL WERE NOT

INEFFECTIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. The post-conviction court correctly concluded

that counsel were not deficient in failing to

request a Simmons instruction. . . . . . . . . . . . 9

B. The post-conviction court correctly held that

Cropper was not prejudiced by counsel’s

failure to request a Simmons instruction. . . 11

1. Prejudice may not be presumed . . . . . . . 12

2. The post-conviction court correctly found

that Cropper was not prejudiced by

counsel’s failure to request a Simmons

instruction . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iii

TABLE OF AUTHORITIES

CASES

Batson v. Kentucky,

476 U.S. 79 (1986). . . . . . . . . . . . . . . . . . . . . . . . 18

Bobby v. Van Hook,

558 U.S. 4 (2009). . . . . . . . . . . . . . . . . . . . . . . . . 11

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014). . . . . . . . . . . . . . . . . . . . . . . 12

Bush v. Singletary,

988 F.2d 1082 (11th Cir. 1993). . . . . . . . . . . . . . 11

Engle v. Isaac,

456 U.S. 107 (1982). . . . . . . . . . . . . . . . . . . . . . . 11

Foster v. Chatman,

136 S. Ct. 1737 (2016). . . . . . . . . . . . . . . . . . . . . 18

Government of Virgin Islands v. Lewis,

620 F.3d 359 (3d Cir. 2010) . . . . . . . . . . . . . . . . 10

Kelly v. South Carolina,

534 U.S. 246 (2002). . . . . . . . . . . . . . . . . . 6, 16, 18

Kimmelman v. Morrison,

477 U.S. 365 (1986). . . . . . . . . . . . . . . . . . . . . . . . 9

Kingdomware Techs., Inc. v. United States,

136 S. Ct. 1969 (2016). . . . . . . . . . . . . . . . . . 12, 13

Lopez v. Thurmer,

594 F.3d 584 (7th Cir. 2010). . . . . . . . . . . . . . . . 10

Lynch v. Arizona,

136 S. Ct. 1818 (2016). . . . . . . . . . . . . . . . . . . . 6, 7

iv

O’Dell v. Netherland,

521 U.S. 151 (1997). . . . . . . . . . . . . . . . . 13, 14, 16

Ramdass v. Angelone,

530 U.S. 156 (2000). . . . . . . . . . . . . . . . . . . . . . . 16

Ring v. Arizona,

536 U.S. 584 (2002). . . . . . . . . . . . . . . . . . . . . 4, 19

Shafer v. South Carolina,

532 U.S. 36 (2001). . . . . . . . . . . . . . . . . . . . . . . . . 6

Simmons v. South Carolina,

512 U.S. 154 (1994). . . . . . . . . . . . . . . . . . . passim

State v. Benson,

307 P.3d 19 (Ariz. 2013) . . . . . . . . . . . . . . . . . . . . 6

State v. Bush,

423 P.3d 370 (Ariz. 2018) . . . . . . . . . . . . . . . . 7, 13

State v. Cruz,

181 P.3d 196 (Ariz. 2008) . . . . . . . . . . . . . 6, 10, 15

State v. Escalante-Orozco,

386 P.3d 798 (Ariz. 2017) . . . . . . . . . . . . . . . . . . . 7

State v. Garcia,

226 P.3d 370 (Ariz. 2010) . . . . . . . . . . . . . . . . . . . 6

State v. Hargrave,

234 P.3d 569 (Ariz. 2010) . . . . . . . . . . . . . . . . . . . 6

State v. Hulsey,

408 P.3d 408 (Ariz. 2018) . . . . . . . . . . . . . . . . . . . 7

State v. Rushing,

404 P.3d 240 (Ariz. 2017) . . . . . . . . . . . . . . . . . . . 7

v

State v. Salazar,

844 P.2d 566 (Ariz. 1992) . . . . . . . . . . . . . . . . . . 18

State v. Sanders,

425 P.3d 1056 (Ariz. 2018) . . . . . . . . . . . . . . . . . . 7

Strickland v. Washington,

466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . passim

United States v. Cronic,

466 U.S. 648 (1984). . . . . . . . . . . . . . . . . . . . 13, 14

United States v. Jones,

565 U.S. 400 (2012). . . . . . . . . . . . . . . . . . . . . . . 12

Weaver v. Massachusetts,

137 S. Ct. 1899 (2017). . . . . . . . . . . . . . . . . . 13, 14

STATUTES

A.R.S. § 13–703(F)(2) (1993) . . . . . . . . . . . . . . . . . . . 4

A.R.S. § 13–703(F)(6) (1993) . . . . . . . . . . . . . . . . . . . 4

A.R.S. § 13–703(F)(7) (1993) . . . . . . . . . . . . . . . . . . . 4

A.R.S. § 13–703.01(K) (2002) . . . . . . . . . . . . . . . . . . . 4

RULES

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Sup. Ct. R. 37.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

OTHER AUTHORITIES

Revised Arizona Jury Instructions, Capital Case

Instruction 1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1

INTRODUCTION

While an inmate, Petitioner Leroy Cropper planned

and carried out the murder of a corrections officer as

retaliation for the search of his cell. Although he was

“locked down” in his cell after the search, Cropper

convinced neighboring inmates to retrieve and pass

him a knife through the vent between the cells. He

then enlisted another inmate to “spin” the lock on his

cell, enabling him to leave. After escaping his cell with

the knife, Cropper found Corrections Officer Brent

Lumley in the control room and stabbed him repeatedly

in the neck, killing him.

Despite Cropper’s attempts to make it appear

otherwise, this case is not about Simmons error, which

is present when a court wrongly refuses to give a

defendant’s requested parole-ineligibility instruction.

Cropper’s counsel did not request a parole-ineligibility

instruction, and therefore the trial court did not err by

failing to give one. This case does not provide a vehicle

to determine whether prejudice should be presumed

from a Simmons error, see Pet. 20–23, or whether

Arizona courts are complying with Simmons, see Pet.

27–29. Instead, Cropper merely asks this Court to

correct the error he perceives in the post-conviction

court’s ruling on his ineffective-assistance claim.

This Court should deny review. Cropper presents

no compelling reason for this Court to grant review on

his mine-run, fact-specific claim that counsel were

ineffective in failing to request a parole-ineligibility

instruction on the facts of this case.

2

STATEMENT

On March 7, 1997, Leroy Cropper was an inmate at

the Perryville State Prison in Goodyear, Arizona. Pet.

App. 69a. When corrections officers discovered that

some mops were missing, Officers Brent Lumley and

Deborah Landsperger began searching the nearby cells.

Id. While searching cell number 258, which held

Cropper and Lloyd Elkins, Officers Lumley and

Landsperger found contraband including a knife,

tattooing equipment, and a possible “hit” list. Id.

During the search, Cropper repeatedly entered the cell,

yelling at the officers. Cropper believed the officers

disrespected him and his property and damaged a

photograph of his mother. Id. After searching the cell,

Officers Lumley and Landsperger placed Cropper and

Elkins on “lockdown” status in their cell. This resulted

in the inmates being locked inside their cell from the

control room master panel, unable to leave. Id.

Because Cropper believed Officer Landsperger had

been disrespectful to him and his property during the

search, he decided to retaliate. Pet. App. 93a. But

Cropper did not want to be known as a “ladykiller,” so

he planned to kill Officer Lumley. Id. Because he was

on lockdown, Cropper spoke through a common vent to

the occupants of a neighboring cell, Eugene Long and

Bruce Howell. Pet. App. 69a. Long and fellow inmate

Joshua Brice retrieved an eight-inch steel carving knife

that had been buried in one of the yards. Id. Long

passed Cropper the knife through the vent between the

cells. Pet. App. 69a–70a. Long then passed a righthanded glove through the vent. Pet. App. 70a. Cropper

3

wrapped a shoelace around the knife handle to provide

a better grip. Id.

To get out of his cell to commit the murder, Cropper

enlisted two inmates to “spin the lock” to his cell door.

Pet. App. 70a. After opening the cell door, the inmates

went looking for Officers Lumley and Landsperger.

Howell and Long informed Cropper that Officer Lumley

was in the control room with the door unlocked. Id.

Cropper found Officer Lumley alone in the control

room, opened the door, rushed at Officer Lumley, and

stabbed him in the neck. Pet. App. 93a. The men

crashed into a desk, and Cropper pinned the officer up

against a wall while the two men struggled violently

for up to two minutes. Id. Officer Lumley suffered a

total of six stab wounds. Cropper left the knife

protruding from Officer Lumley’s neck. Pet. App. 70a.

Cropper returned to his cell, but the cell door was

locked. He found the door to the neighboring cell

unlocked and entered it, telling Howell, who was

inside, “I got him.” Id. Cropper removed his sweatshirt

and undershirt, which were covered with blood, and

threw them into Howell’s trash can. Id. Cropper

removed the name-tag sewn on the collar of his shirt

and flushed it down Howell’s toilet. Pet. App. 70a–71a.

Another inmate spun the lock to Cropper’s cell door,

and Cropper returned to his cell. Pet. App. 71a.

Cropper’s cellmate helped Cropper clean the blood from

his body. Cropper cleaned the blood from his pants and

shoes by soaking them in a mixture of water and

laundry detergent. Id. Howell put Cropper’s bloody

clothes inside a garbage bag, which he threw onto the

roof of the building. Id.

4

Meanwhile, prison officers were changing shifts.

Officers coming on duty discovered Officer Lumley and

attempted to resuscitate him. Pet. App. 93a. Despite

their efforts, Officer Lumley did not survive.

Cropper pleaded guilty to the first-degree murder of

Officer Lumley. Pet. App. 91a. The trial judge initially

sentenced Cropper to death, but the Arizona Supreme

Court vacated that sentence on direct appeal pursuant

to Ring v. Arizona, 536 U.S. 584 (2002), which was

decided while Cropper’s appeal was pending, and

remanded for a new sentencing. Pet. App. 91a–92a.

On remand, a jury found two aggravating

circumstances: Cropper had been convicted of a prior

serious offense, A.R.S. § 13–703(F)(2) (1993), and

Cropper committed the murder while he was

incarcerated, A.R.S. § 13–703(F)(7) (1993). Pet. App.

92a. The jury, however, hung as to whether the killing

was especially cruel, A.R.S. § 13–703(F)(6) (1993), and

also failed to reach a verdict on the sentence. At

resentencing pursuant to A.R.S. § 13–703.01(K) (2002),

a second jury found the (F)(6) circumstance proven and

sentenced Cropper to death. Id.

On independent review, the Arizona Supreme Court

affirmed the jury’s aggravation findings and Cropper’s

death sentence. Pet. App. 98a–100a, 105a.

On

February 8, 2017, the post-conviction court summarily

dismissed Cropper’s petition for post-conviction relief,

finding no colorable claims. Pet. App. 61a. With respect

to the ineffective-assistance claim at issue here, the

court found that trial counsel did not perform

deficiently in failing to request a parole-ineligibility

instruction pursuant to Simmons because at the time

5

the court instructed the jury, the Arizona Supreme

Court had held that Simmons did not apply in Arizona.

The court further found that Cropper was not

prejudiced by the absence of a parole-ineligibility

instruction because there was no reasonable

probability that the jury would have imposed a life

sentence had it known Cropper could not be released on

parole. The Arizona Supreme Court denied review.

REASONS FOR DENYING THE WRIT

This Court grants certiorari “only for compelling

reasons,” Sup. Ct. R. 10, and Cropper has presented no

such reason. In particular, Cropper has not established

that the state court has “decided an important federal

question in a way that conflicts with relevant decisions

of this Court.” Sup. Ct. R. 10(c). Rather, Cropper

“assert[s] error consist[ing] of erroneous factual

findings [and] the misapplication of a properly stated

rule of law,” for which this Court “rarely grant[s]”

certiorari review. Sup. Ct. R. 10. Because Cropper

merely seeks correction of the Arizona post-conviction

court’s perceived error in denying his ineffectiveness

claim, this Court should deny the petition.1

1

Cropper’s Amici are misfocused on claims of stand-alone

Simmons error and otherwise present arguments already made by

Cropper. See Sup. Ct. R. 37.1 (an amicus that does not address a

“relevant matter not already brought to [the Court’s] attention by

the parties … burdens the Court, and its filing is not favored”).

6

I. CROPPER

ALLEGES

INEFFECTIVE

ASSISTANCE (NOT SIMMONS ERROR), AND

IN ANY EVENT ARIZONA ADHERES TO

SIMMONS.

In Simmons, this Court held that, “where the

defendant’s future dangerousness is at issue, and state

law prohibits the defendant’s release on parole, due

process requires that the sentencing jury be informed

that the defendant is parole ineligible.” Simmons, 512

U.S. at 156; see also Kelly v. South Carolina, 534 U.S.

246 (2002); Shafer v. South Carolina, 532 U.S. 36

(2001). In State v. Cruz, 181 P.3d 196, 207, ¶ 42 (Ariz.

2008), the Arizona Supreme Court held that Simmons

did not apply in Arizona. See also State v. Benson, 307

P.3d 19, 32, ¶ 56 (Ariz. 2013) (“Arizona law does not

make Benson ineligible for parole.”); State v. Hargrave,

234 P.3d 569, 582, ¶ 53 (Ariz. 2010) (“[T]he instructions

here correctly reflected the statutory potential for

Hargrave’s release.”); State v. Garcia, 226 P.3d 370,

387, ¶ 77 (Ariz. 2010) (“[T]he trial court was not

required to give an instruction on parole eligibility

because ... Garcia was not technically ineligible for

parole.”). In Lynch v. Arizona, 136 S. Ct. 1818 (2016),

however, this Court held that Simmons applies in

Arizona and as a result Arizona courts must instruct

juries, when the State argues future dangerousness in

capital sentencing proceedings, that the defendant

cannot receive a parole-eligible sentence.

Cropper asserts that, even after Lynch, “Arizona

courts are still reluctant to adhere to” Simmons. Pet.

28. But the question whether Arizona courts have

complied with this Court’s rulings in Simmons and

7

Lynch is not encompassed in the ineffectiveness claim

Cropper presents for this Court’s review, which asks

whether counsel’s failure to seek a Simmons

instruction was ineffective. This case does not provide

a vehicle to consider the state courts’ adherence to

Simmons. The post-conviction court’s resolution of

Cropper’s routine ineffective-assistance claim has no

bearing on the question whether Arizona courts adhere

to Simmons’ requirements.

In any event, Arizona courts correctly apply

Simmons. Since Lynch, the Arizona Supreme Court

has considered at least five cases alleging that trial

courts erred by failing to give Simmons instructions.

In three of these cases, the court found the trial court’s

error in failing to give the requested instruction not

harmless and reversed for a new penalty phase. See

State v. Hulsey, 408 P.3d 408, 435–39, ¶¶ 124–44 (Ariz.

2018); State v. Escalante-Orozco, 386 P.3d 798, 828–30,

¶¶ 116–27 (Ariz. 2017); State v. Rushing, 404 P.3d 240,

249–51, ¶¶ 36–44 (Ariz. 2017). In State v. Sanders, 425

P.3d 1056, 1064–67, ¶¶ 15–32 (Ariz. 2018), the court

held that the State had not put the defendant’s future

dangerousness at issue, and therefore the trial court

did not err in failing to give a Simmons instruction.

And in State v. Bush, 423 P.3d 370, 385–88, ¶¶ 63–75

(Ariz. 2018), the court held that the defendant failed to

request a Simmons instruction, and as a result the trial

court did not err by failing to give one.

Further, Arizona’s standard jury instructions now

instruct that a sentence of life with the possibility of

release does not include parole:

8

If the defendant is sentenced to “life with the

possibility of release,” parole is not currently

available. The defendant’s only option is to

petition the Board of Executive Clemency for

release. If that Board recommends to the

Governor that the defendant should be released,

then the Governor would make the final decision

regarding whether the defendant would be

released.

Revised Arizona Jury Instructions, Capital Case

Instruction 1.1.

Cropper characterizes his case as “the latest in a

series of cases where a handful of state courts have

refused to adhere to the teachings of this Court’s

decision in Simmons.” Pet. 10–11. As just discussed,

however, Arizona courts are complying with Simmons.

Further, Cropper ignores that his claim is one of

ineffective assistance of counsel, not Simmons error.

This case does not present an important legal question

related to Simmons. Cropper has failed to demonstrate

any need for the Court’s intervention in this case,

which involves a state court’s resolution of a routine

ineffectiveness claim that presents no novel issue or

conflict with decisions of this or any other court.

II. T H E

POST-CONVICTION

COURT

CORRECTLY DETERMINED THAT

CROPPER’S COUNSEL WERE NOT

INEFFECTIVE.

The question presented for this Court’s review is not

whether the state court “adhered to” Simmons, but

whether it correctly decided Cropper’s ineffective-

9

assistance claim under the standard this Court set out

in Strickland v. Washington, 466 U.S. 668 (1984).

To prevail on a claim of ineffective assistance of

counsel, a defendant must demonstrate both that

counsel’s performance fell below an “objective standard

of reasonableness,” and that counsel’s deficient

performance prejudiced the defense. Strickland, 466

U.S. at 687–88.

To prove deficient performance, a defendant must

“overcome the presumption that, under the

circumstances, the challenged action might be

considered sound trial strategy.” Id. at 689 (internal

quotation marks omitted).

To establish prejudice resulting from counsel’s

deficient performance, a defendant must show “a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. “A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id. “Only those …

petitioners who can prove under Strickland that they

have been denied a fair trial by the gross incompetence

of their attorneys will be granted [relief].” Kimmelman

v. Morrison, 477 U.S. 365, 382 (1986).

A. The post-conviction court correctly

concluded that counsel were not deficient

in failing to request a Simmons instruction.

The post-conviction court held that, even if counsel

erroneously believed that Cropper could receive a

parole-eligible sentence, the failure to request a

Simmons instruction was objectively reasonable “[i]n

10

light of the law in Arizona as it existed until 2016.” Pet.

App. 44a. Cropper was sentenced to death 12 years

ago, when Cruz established that Arizona defendants

were not entitled to Simmons instructions. The postconviction court reasoned that counsel’s failure to

request a Simmons instruction “tracked with

subsequent precedent that remained in effect in

Arizona until 2016. Counsel had no reason to

anticipate a change in the law.” Id. Counsel were not

deficient in failing to request an instruction to which,

under Arizona law, Cropper was not entitled. See

Government of Virgin Islands v. Lewis, 620 F.3d 359,

372 (3d Cir. 2010) (“[C]ounsel cannot be ineffective for

failing to request an instruction to which [defendant]

was not entitled.”); Lopez v. Thurmer, 594 F.3d 584,

587 (7th Cir. 2010) (court reasonably concluded that

counsel was not deficient in “fail[ing] to request an

instruction that, as a matter of state law, the defendant

[was] not entitled to in the first place”).2

Cropper notes that other attorneys have

unsuccessfully sought Simmons instructions in other

Arizona capital cases, asserting that his counsel were

deficient in failing to make the same futile request. See

Pet. 17–19.

But this does not show deficient

performance. Rather, it demonstrates that counsel’s

decision was objectively reasonable because Simmons

2

Cropper’s sentencing trial began on March 5, 2008, and the jury

rendered its verdict sentencing him to death on May 2, 2008. The

Arizona Supreme Court decided Cruz on April 21, 2008. Thus,

although counsel could not have relied on Cruz when they filed

their proposed jury instructions, it was decided well before the

instructions were finalized and thus presumably guided the

decision making process. See Pet. 15–16.

11

instructions were routinely refused. It also shows a

lack of prejudice. See § II(B)(2), infra. Further,

Cropper cites pre-Strickland case law interpreting the

cause and prejudice standard for excusing the

procedural default of a claim in a federal habeas

proceeding. Id. at 19 (citing Engle v. Isaac, 456 U.S.

107, 130 (1982)). The cause and prejudice standard has

no application to a deficient performance analysis

under Strickland. “Strickland does not compel an

attorney to urge an argument which he reasonably

finds to be futile.” Bush v. Singletary, 988 F.2d 1082,

1092, (11th Cir. 1993) (internal quotation marks

omitted).3 The post-conviction court correctly held that

Cropper’s counsel did not perform deficiently by failing

to request a Simmons instruction. Cropper’s

disagreement with that conclusion does not warrant

certiorari review.

B. The post-conviction court correctly held

that Cropper was not prejudiced by

counsel’s failure to request a Simmons

instruction.

The post-conviction court found that Cropper was

not prejudiced by counsel’s failure to request a

3

Cropper also asserts that the ABA Guidelines required his

counsel to make a futile request for a Simmons instruction. Pet.

18. But this Court has never held that failure to comply with the

ABA Guidelines amounts to deficient performance. See Bobby v.

Van Hook, 558 U.S. 4, 13–14 (2009) (Alito, J., concurring) (Justice

Alito writing to “emphasize [his] understanding that the opinion

in no way suggests that the [ABA Guidelines] have special

relevance in determining whether an attorney’s performance meets

the standard required by the Sixth Amendment”).

12

Simmons instruction because (1) the trial court

accurately instructed the jury on the possible sentences

Cropper could receive, and (2) in light of the facts and

circumstances of the murder, and the aggravating

circumstances, there was no reasonable probability

that the jury would have imposed a life sentence had a

Simmons instruction been given. Pet. App. 46a.

Cropper disagrees with the court’s factual

conclusions, but he presents no reason for this Court to

review them. Further, in complaining of the postconviction court’s no-prejudice finding, Cropper

presents meritless arguments he forfeited by failing to

raise below. Kingdomware Techs., Inc. v. United States,

136 S. Ct. 1969, 1978 (2016) (“The Department failed to

raise this argument in the courts below, and we

normally decline to entertain such forfeited

arguments.”); Burwell v. Hobby Lobby Stores, Inc., 573

U.S. 682, 721 (2014) (“We do not generally entertain

arguments that were not raised below and are not

advanced in this Court by any party.”); United States v.

Jones, 565 U.S. 400, 413 (2012) (finding argument

forfeited because government did not raise it below).

1. Prejudice may not be presumed.

This case does not provide a vehicle to determine

whether prejudice may be presumed when Simmons

error is present. Cropper asserts that “Simmons errors

render sentencings fundamentally unfair and

unreliable” and therefore prejudice from such errors

should be presumed. Pet. 20. But to the extent

Cropper assumes Simmons error is present here, he is

incorrect: because Cropper did not request a Simmons

instruction, the trial court did not err by failing to give

13

one. See Bush, 423 P.3d at 388, ¶ 75 (Simmons error is

not present where “the trial court neither refused to

instruct, nor prevented [defendant] from informing, the

jury regarding his parole ineligibility”).

Cropper nevertheless asserts—for the first

time—that counsel’s failure to request a Simmons

instruction qualifies as “an error [that] impacts the

fundamental fairness of criminal proceedings,” such

that prejudice should be presumed under Strickland.

Id. (citing United States v. Cronic, 466 U.S. 648 (1984);

Weaver v. Massachusetts, 137 S. Ct. 1899 (2017)).

Because Cropper did not argue below that counsel’s

failure to request a Simmons instruction amounted to

a complete deprivation of counsel under Cronic, or

otherwise entitled him to a presumption of prejudice

under Weaver, he has forfeited the argument.4 See

PCR Supplement, at 43–49; Kingdomware Techs., 136

S. Ct. at 1978.

In any event, counsel’s failure to request a Simmons

instruction does not “impact[] the fundamental fairness

of criminal proceedings” such that Strickland prejudice

may be presumed. Pet. 20. This Court has observed

that Simmons provides only a “narrow right of

rebuttal … to defendants in a limited class of capital

cases.” O’Dell v. Netherland, 521 U.S. 151, 167 (1997).

Counsel’s failure to request a Simmons instruction,

therefore, does not establish that “counsel failed to

4

This Court decided Weaver in 2017, after the post-conviction

court denied relief on Cropper’s petition. Nevertheless, Cropper did

not seek rehearing based on Weaver or cite Weaver in his petition

for review to the Arizona Supreme Court, which he filed 6 months

after Weaver was decided. See Petition for Review, at 43–47.

14

function in any meaningful sense as the Government’s

adversary.” Cronic, 466 U.S. at 666. In fact, this Court

held in O’Dell that “[i]t is by no means inevitable that,

absent application of the rule of Simmons, miscarriages

of justice will occur.” 521 U.S. at 167 n.4 (internal

quotation marks and alteration omitted).

Nor does Weaver help Cropper, even if Cropper had

not forfeited this argument. In Weaver, this Court held

that a petitioner asserting that counsel was ineffective

in failing to object to the closing of the courtroom

during jury selection—which is structural error—must

still demonstrate Strickland prejudice before he is

entitled to relief on the ineffectiveness claim. Weaver,

137 S. Ct. at 1911 (“[W]hen a defendant raises a publictrial violation via an ineffective-assistance-of-counsel

claim, Strickland prejudice is not shown

automatically.”). This Court further cautioned that,

“[w]hen a structural error is raised in the context of an

ineffective-assistance claim, … finality concerns are far

more pronounced.” Id. at 1913. Thus, “the rules

governing ineffective-assistance claims must be applied

with scrupulous care.” Id. at 1912 (internal quotation

marks omitted).

2. The post-conviction court correctly found that

Cropper was not prejudiced by counsel’s

failure to request a Simmons instruction.

Cropper contends that, had the trial court given a

Simmons instruction, it is “at least reasonably probable

that [he] would have received a life sentence.” Pet. 19

(emphasis omitted); see also Pet. 23 (asserting a

reasonable probability of a different outcome if the

court had given a Simmons instruction). But such a

15

conclusion incorrectly assumes that the court would

have given a Simmons instruction if requested. As

established earlier, by the time the trial court gave the

final penalty-phase instructions in 2008, the Arizona

Supreme Court had decided in Cruz that Simmons did

not apply in Arizona. Thus, there is no reasonable

probability that the trial court would have given the

instruction had counsel requested it, and as a result

there is no reasonable probability that the outcome of

the sentencing would have been any different. Cropper

admits as much when he argues that counsel had a

duty to make a futile request for a Simmons instruction

to preserve the claim. Pet. 17–19.5

In any event, the post-conviction court reasonably

held that Cropper was not prejudiced by the absence of

a Simmons instruction. As an initial matter, Cropper

agrees that he, and not the State, placed his future

dangerousness in issue. See Pet. 7 (citing R.T. 4/29/08,

at 6–7).

And the State’s future dangerousness

argument was brief. Cropper identified only eight lines

from the prosecutor’s 23-page closing argument as

arguing future dangerousness. PCR Petition at 55

(citing R.T. 4/29/08, at 96); PCR Reply at 29 (Cropper

acknowledging the brevity of any future dangerousness

5

To the extent Cropper believes he can establish Strickland

prejudice by asserting he will be prejudiced in a hypothetical

future proceeding, he is incorrect. Strickland required him to show

he was prejudiced by counsel’s performance, not that he will be

prejudiced in the future. See Strickland, 466 U.S. at 694 (“The

defendant must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” (emphasis added)); see Brief for Amicus

Curiae Arizona Attorneys for Criminal Justice, at 14–15.

16

argument).6 Given that the vast majority of the State’s

closing argument disputed the mitigating value of

Cropper’s difficult childhood and emphasized the

facts of the crime, any rebuttal of the “future

dangerousness” argument accomplished by a Simmons

instruction would not have been significant. O’Dell,

521 U.S. at 167 (Simmons provides a “narrow right of

rebuttal” to some capital defendants).

Cropper’s future dangerousness and paroleineligibility would not have been compelling because

Cropper demonstrated, by killing a corrections officer

while he was incarcerated, that he remains a danger to

society even while in prison. Thus, “[i]nforming his

sentencing jury that petitioner would spend the rest of

his days in prison would not … necessarily have

rebutted an argument that he presented a continuing

danger.” Id. at 167 n.4; see also Ramdass v. Angelone,

530 U.S. 156, 170 (2000) (“Evidence of potential parole

ineligibility is of uncertain materiality, as it can be

overcome if a jury concludes that even if the defendant

might not be paroled … he may be no less a risk to

society in prison.”); Kelly, 534 U.S. at 261 (Rehnquist,

C.J., dissenting) (“[W]hen the State argues that the

defendant poses a threat to his cellmates or prison

guards, it is no answer to say that he never will be

released from prison.”).

In finding Cropper was not prejudiced, the postconviction court first observed that the jury was

6

Cropper now asserts that the State placed his future

dangerousness at issue in other argument. Pet. 7. But the

arguments he cites still consist of only a few additional lines from

the prosecutor’s lengthy closing argument.

17

accurately instructed that, if it did not impose a death

sentence, the court would impose a life sentence. Pet.

App. 46a. The instructions did not reference any

possibility of parole. Id. Cropper now complains that,

by discussing the instructions, the post-conviction court

“impl[ied] that the jury necessarily understood that

parole was not available.” Pet. 26. But the trial court

merely noted that the jury was accurately instructed on

the possible sentences. The post-conviction court

appropriately considered that fact in determining that

there was no reasonable probability that the jury would

have imposed a life sentence had a Simmons

instruction been requested and given.

The post-conviction court also reasonably considered

the circumstances of the offense and Cropper’s criminal

history in finding Cropper was not prejudiced by the

lack of a Simmons instruction:

The jury was faced with a Defendant who had

previously been sentenced to probation, who had

been placed on parole, and who had murdered a

corrections officer while in prison, as well as

later had committed an aggravated assault.…

The [un]availability of parole … is unlikely to

have been sufficiently substantial to suggest

leniency to change the verdict of death to “life”

in even a single juror’s mind.

Pet. App. 46a.

Cropper asserts that his murder of Officer Lumley

was no worse than “other first-degree murderers who

have received life sentences.” Pet. 27. But he did not

argue below that the post-conviction court should have

18

compared his case to others in order to find he was

prejudiced by the absence of a Simmons instruction.

Nor should the court have done so. In determining

prejudice, the post-conviction court considered whether

there was a reasonable probability that the jury would

have imposed a life sentence had a Simmons

instruction been given. Because jurors could not have

compared Cropper’s crime to other murders in

determining the appropriate sentence, it would have

been inappropriate for the post-conviction court to do so

in determining whether Cropper was prejudiced. Such

a comparison would also have been inappropriate,

given that Arizona does not conduct proportionality

reviews of death sentences. See State v. Salazar, 844

P.2d 566, 583–84 (Ariz. 1992) (discontinuing

proportionality reviews).

Cropper further downplays the seriousness of his

premeditated murder of Officer Lumley by comparing

the facts of his case to those in other cases this Court

has reversed. Pet. 24–25. But this Court reversed

those cases based on errors unrelated to the facts of the

offenses or any ineffectiveness of counsel in failing to

request a Simmons instruction. See Foster v. Chatman,

136 S. Ct. 1737, 1755 (2016) (reversing for error under

Batson v. Kentucky, 476 U.S. 79 (1986)); Kelly, 534 U.S.

at 257 (failure to give requested parole-ineligibility

instruction); Simmons, 512 U.S. at 181 (same).

Cropper provides no authority requiring the postconviction court to judge his case against a “baseline

norm of all first-degree murders”—or even that such a

“norm” exists—before finding he was not prejudiced.

Pet. 24.

19

Cropper also did not assert below, as he does now,

that the Arizona Supreme Court’s “harmlessness

finding” (apparently referring to the Arizona Supreme

Court’s post-Ring remand of Cropper’s case for jury

sentencing) established he was prejudiced by the lack

of a Simmons instruction. See Pet. 25. But the Ring

remand does not establish that Cropper was prejudiced

by counsel’s failure to request a Simmons instruction.

In remanding for a jury sentencing, the Arizona

Supreme Court merely held that a reasonable jury

could fail to find the cruelty aggravating circumstance

(which the trial court had found) and could have found

mitigating circumstances that the trial court had

rejected. Pet. App. 86a, 89a. The remand was not

relevant to the question of whether there was a

reasonable probability that the 2008 jury (which did

find the cruelty circumstance proven) would have

imposed a life sentence had a Simmons instruction

been given.

The 2006 jury’s inability to reach a sentencing

decision also does not support a finding of Strickland

prejudice. Pet. 25, 27. That jury did not reach a

decision on the cruelty aggravator and therefore had

fewer aggravators to weigh against mitigation than did

the 2008 jury. Pet. App. 92a. The 2006 jury’s inability

to reach a sentencing verdict on fewer aggravating

circumstances does not suggest a reasonable

probability that the 2008 jury would have imposed a

life sentence had a Simmons instruction been given.

Nor does it matter that the 2006 jury asked (but

was not told) whether a parole-eligible sentence was

possible. See Pet. 25. That jury failed to reach a

20

sentencing verdict—thus, it did not impose a death

sentence based on any fear that Cropper might be

released one day. The fact that the jury asked this

question, therefore, does not establish that Cropper

was prejudiced by the absence of a Simmons

instruction.

CONCLUSION

Based on the foregoing authorities and arguments,

Respondents respectfully request that this Court deny

the petition for writ of certiorari.

Respectfully submitted

MARK BRNOVICH

Attorney General

ORAMEL H. (O.H.) SKINNER

Solicitor General

Lacey Stover Gard

Chief Counsel

LAURA P. CHIASSON

Assistant Attorney General

(Counsel of Record)

Capital Litigation Section

400 W. Congress, Bldg. S-215

Tucson, Arizona 85701-1367

(520) 628–6520

Laura.Chiasson@azag.gov

Counsel for Respondent