Opposition Brief — John Montenegro Cruz, Petitioner v. Arizona

No. 21-846

In the

Supreme Court of the United States

__________________

JOHN MONTENEGRO CRUZ,

Petitioner,

v.

STATE OF ARIZONA,

Respondent.

__________________

On Petition for Writ of Certiorari to the

Arizona Supreme Court

__________________

BRIEF IN OPPOSITION

__________________

MARK BRNOVICH

Attorney General

of Arizona

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

BRUNN W. ROYSDEN, III

Solicitor General

JEFFREY L. SPARKS

Acting Chief Counsel for

the Capital Litigation

Section

*Counsel of Record

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542–4686

CLDocket@azag.gov

Counsel for Respondent

February 4, 2022

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

i

CAPITAL CASE

QUESTION PRESENTED

Petitioner John Montenegro Cruz sought successive

postconviction relief in the Arizona courts under

Arizona Rule of Criminal Procedure 32.1(g), arguing

that Lynch v. Arizona, 578 U.S. 613 (2016), entitled

him to relief from his death sentence. The Arizona

Supreme Court denied relief on state law procedural

grounds because it found that Lynch was not a

“significant change in the law,” one of the prerequisites

for relief under Rule 32.1(g). Was the Arizona Supreme

Court nonetheless required to apply Lynch

retroactively to Cruz’s case?

ii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

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

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

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 1

A. Murder of Officer Hardesty and Cruz’s

trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Simmons v. South Carolina and

Cruz’s trial and appeal. . . . . . . . . . . . . . . . 2

C. Lynch v. Arizona and Cruz’s

successive postconviction

proceeding. . . . . . . . . . . . . . . . . . . . . . . . . . 5

REASONS FOR NOT GRANTING THE WRIT . . . . 8

I.

Cruz waived any claim under Simmons or

Lynch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

II.

The Arizona Supreme Court’s decision rested

on an independent and adequate state law

ground . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

III.

Even if Lynch’s retroactivity were at issue,

Cruz’s case presents a poor vehicle to address

it . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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

iii

TABLE OF AUTHORITIES

CASES

Ake v. Oklahoma,

470 U.S. 68 (1985). . . . . . . . . . . . . . . . . . . . . . . . 12

Andriano v. Shinn,

2021 WL 184546 (D. Ariz. Jan. 19, 2021) . . . . . . 6

Beard v. Kindler,

558 U.S. 53 (2009). . . . . . . . . . . . . . . . . . . . . 14, 15

Brecht v. Abrahamson,

507 U.S. 619 (1993). . . . . . . . . . . . . . . . . . . . . . . 20

Campbell v. Polk,

447 F.3d 270 (4th Cir. 2006). . . . . . . . . . . . . . . . 10

Chaidez v. United States,

568 U.S. 342 (2013). . . . . . . . . . . . . . . . . . . . . . . 13

Cruz v. Credio et al.,

No. 21-99005 (9th Cir. Nov. 9, 2021) . . . . . . . . . . 5

Cruz v. Ryan,

2018 WL 1524026, (D. Ariz. Mar. 28, 2018) . . . 10

Cruz v. Shinn,

2021 WL 1222168 (D. Ariz. Mar. 31, 2021) . . . . . 5

Dugger v. Adams,

489 U.S. 401 (1989). . . . . . . . . . . . . . . . . . . . . . . 14

Ford v. Georgia,

498 U.S. 411 (1991). . . . . . . . . . . . . . . . . . . . . . . 11

Foster v. Chatman,

578 U.S. 488 (2016). . . . . . . . . . . . . . . . . . . . 11, 12

iv

Harris v. Reed,

489 U.S. 255 (1989). . . . . . . . . . . . . . . . . . . . . . . 11

Kelly v. South Carolina,

534 U.S. 246 (2002). . . . . . . . . . . . . . . . . . . . . . . 18

Lynch v. Arizona,

578 U.S. 613 (2016). . . . . . . . . . . . . . . . . . . passim

Miller v. Alabama,

567 U.S. 460 (2012). . . . . . . . . . . . . . . . . . . . . . . 15

Montgomery v. Louisiana,

577 U.S. 190 (2016). . . . . . . . . . . . . . . . . . . . . . . 15

Moran v. McDaniel,

80 F.3d 1261 (9th Cir. 1996). . . . . . . . . . . . . . . . 15

O’Dell v. Netherland,

521 U.S. 151 (1997). . . . . . . . . . . . . . . . . . . . . . . 19

Ring v. Arizona,

536 U.S. 584 (2002). . . . . . . . . . . . . . . . . . . . 12, 15

Shafer v. South Carolina,

532 U.S. 36 (2001). . . . . . . . . . . . . . . . . . . . 3, 9, 10

Simmons v. South Carolina,

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

State v. Bush,

423 P.3d 370 (Ariz. 2018) . . . . . . . . . . . . . . . . . . 10

State v. Escalante-Orozco,

386 P.3d 798 (Ariz. 2017) . . . . . . . . . . . . . . . . . . . 8

State v. Garcia,

226 P.3d 370 (Ariz. 2010) . . . . . . . . . . . . . . . . . . . 5

v

State v. Hardy,

283 P.3d 12 (Ariz. 2012) . . . . . . . . . . . . . . . . . . . . 5

State v. Hulsey,

408 P.3d 408 (Ariz. 2018) . . . . . . . . . . . . . . . . . . . 8

State v. Rushing,

404 P.3d 240 (Ariz. 2017) . . . . . . . . . . . . . . . . . . . 8

State v. Shrum,

203 P.3d 1175 (Ariz. 2009) . . . . . . . . . 7, 12, 15, 16

State v. Slemmer,

823 P.2d 41(Ariz. 1991) . . . . . . . . . . 11, 12, 15, 16

Stewart v. Smith,

536 U.S. 856 (2002). . . . . . . . . . . . . . . . . . . . . . . 11

Tanner v. United States,

483 U.S. 107 (1987). . . . . . . . . . . . . . . . . . . . . . . 18

Townes v. Murray,

68 P.3d 840 (4th Cir. 1995). . . . . . . . . . . . . . . . . 10

Walton v. Arizona,

497 U.S. 639 (1990). . . . . . . . . . . . . . . . . . . . . . . 15

Yates v. Aiken,

484 U.S. 211 (1988). . . . . . . . . . . . . . . . . . . . . . . 13

STATUTES

A.R.S. § 13-703(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A.R.S. § 13-703(F)(10) . . . . . . . . . . . . . . . . . . . . . . . . 2

A.R.S. § 13-751(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A.R.S. § 13-751(F)(6) . . . . . . . . . . . . . . . . . . . . . . . . 19

vi

A.R.S. § 41-1604.09(I) . . . . . . . . . . . . . . . . . . . . . . . . 6

RULES

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Ariz. R. Crim. P. 24.1(d). . . . . . . . . . . . . . . . . . . . . . 18

Ariz. R. Crim. P. 32.1(a). . . . . . . . . . . . . . . . . . . . . . 14

Ariz. R. Crim. P. 32.4(a). . . . . . . . . . . . . . . . . . . . . . 14

Ariz. R. Crim. P. 32.1(g) . . . . . . . . . . . . . i, 1, 7, 11, 13

1

INTRODUCTION

Cruz was convicted of first-degree murder and

sentenced to death for shooting Tucson Police Officer

Patrick Hardesty five times at close range in 2003.

Cruz did not ask the trial judge to instruct the jury,

under Simmons v. South Carolina, 512 U.S. 154 (1994),

that Arizona law did not allow parole for defendants,

like Cruz, who committed felonies after 1993. In 2017,

however, after this Court held in Lynch v. Arizona, 578

U.S. 613 (2016), that Arizona capital defendants were

entitled to instructions under Simmons when the State

places future dangerousness at issue, Cruz filed a

successive petition for postconviction relief arguing

that the lack of a Simmons instruction at his trial

entitled him to relief under Arizona Rule of Criminal

Procedure 32.1(g). Cruz now contends that the Arizona

Supreme Court erred by denying relief on the basis

that his claim did not qualify for relief under Rule

32.1(g) because it was not based on a “significant

change in the law.” Cruz has presented no compelling

reason for this Court’s review because he waived any

error under Simmons or Lynch by failing to request a

parole ineligibility instruction, the Arizona Supreme

Court’s decision below rests on an independent and

adequate state law ground under Rule 32.1(g), and any

theoretical error in his case would have been harmless.

STATEMENT OF THE CASE

A. Murder of Officer Hardesty and Cruz’s

trial.

On the day he was killed, Officer Patrick Hardesty

was questioning Cruz as part of a hit-and-run

2

investigation. App. 2a. During the questioning, Cruz

ran from Officer Hardesty and Officer Hardesty gave

chase on foot. Id. at 202–03, ¶¶ 2–4. At some point

during the chase, Cruz shot the officer five times,

emptying the five-shot revolver he was carrying. Two

shots struck Officer Hardesty’s protective vest, two

others struck him in the abdomen below the vest, and

one entered his left eye, killing him almost instantly.

Id. at 203, ¶¶ 5–7. Four of the shots were fired from no

more than a foot away. Id. at 203, ¶ 6.

Cruz was indicted on one count of first-degree

murder, and the State alleged as an aggravating factor

supporting the death penalty that “[t]he murdered

person was an on-duty peace officer who was killed in

the course of performing the officer’s official duties and

the defendant knew, or should have known, that the

murdered person was a peace officer.” Id. at 203, ¶ 8

(quoting A.R.S. § 13–703(F)(10) (2003)). The jury

convicted Cruz of first-degree murder and found the

aggravating factor proven. It found Cruz’s mitigation

insufficient to call for leniency and determined that

Cruz should be sentenced to death. Id. at 203, ¶ 9.

B. Simmons v. South Carolina and Cruz’s trial

and appeal.

In Simmons v. South Carolina, 512 U.S. 154 (1994),

a defendant on trial for capital murder was ineligible

for parole under state law due to his prior convictions

for violent offenses. 512 U.S. at 156. In response to the

State’s argument that the death penalty was

appropriate based on Simmons’ likelihood of

committing future violence, Simmons asked the judge

to instruct the jury that a life sentence would mean life

3

without parole. Id. at 158. The trial court refused. Id.

at 159–60. This Court reversed Simmons’ death

sentence, holding 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.” Id. at 156; see also Shafer v. South

Carolina, 532 U.S. 36 (2001).

Citing Simmons, Cruz requested, before his trial,

that the judge decide whether he would sentence Cruz

to a natural life sentence or a life sentence with the

possibility of release after 25 years if the jury did not

return a death sentence. See Motion for the Court to

Determine Whether it will Sentence the Accused to Life

or Natural Life Before the Jury Deliberates on the

Sentence, or Alternatively, to Strike the Death Penalty,

State v. Cruz, Pima Co. Sup. Ct. No. CR2003-1740,

Sept. 17, 2003 [ROA 65]; Amended Motion for the

Court to Determine Whether it will Sentence the

Accused to Life or Natural Life Before the Jury

Deliberates on the Sentence, or Alternatively, to Strike

the Death Penalty, State v. Cruz, Pima Co. Sup. Ct. No.

CR2003-1740, Sept. 26, 2003 [ROA 77]. Cruz argued

that if the court denied this request, he would be

deprived of a fair trial and “the opportunity to present

the mitigating factor that he will not be released from

prison,” and the jury would “speculate about what the

possibilities for parole would be for [him] in the event

a life sentence is imposed.” Id. Cruz also proffered

mitigation testimony from the Chairman of the Arizona

Board of Executive Clemency that the Board could only

recommend release after 25 years, but could not order

Cruz’s release on parole. R.T. 1/10/05, at 62; Notice Re:

4

Anticipated Testimony, State v. Cruz, Pima Co. Sup.

Ct. CR2003-1740, Jan. 12, 2005 [ROA 427], at 3.

The trial court declined to decide between the

available types of life sentences before trial and also

precluded the Chairman’s testimony. R.T. 3/1/05, at 6.

The court offered, however, to “give an instruction of

the consequences of a life or natural life sentence … if

the defendant so requests.” R.T. 3/1/05, at 6. Cruz

never so requested—he did not ask the trial court

instruct the jury about his parole-ineligibility. See, e.g.,

Objections and Proposed Modifications to the Court’s

Instructions Re: Phase Three, State v. Cruz, Pima Co.

Sup. Ct. CR2003-1740, March 7, 2005 [ROA 606].

Cruz also did not argue on appeal that Simmons

required the trial court to instruct the jury on his

ineligibility for parole. Instead, he contended that “the

trial court erred by refusing to make a pretrial ruling

on whether, if the jury decided against the death

penalty, the court would sentence him to life or natural

life in prison.” App. 30a. The Arizona Supreme Court

rejected this argument. It found that Cruz’s case

differed from Simmons because “[n]o state law would

have prohibited Cruz’s release on parole after serving

twenty-five years, had he been given a life sentence”

and that the “jury was properly informed of the three

possible sentences Cruz faced if convicted: death,

natural life, and life with the possibility of parole after

twenty-five years.” Id. at 31a. The court also noted that

Cruz “failed to explain how the trial court could opine

on a defendant’s sentence before any evidence is offered

or a verdict is rendered.” Id.

5

Cruz also argued that the trial court abused its

discretion by precluding testimony from the Chairman

of the Arizona Board of Executive Clemency. Id. The

Arizona Supreme Court concluded that the trial court

did not err because “[t]he witness would have been

asked to speculate about what the Board might do in

twenty-five years, when Cruz might have been eligible

for parole had he been sentenced to life.” Id. Thus, the

trial court “could reasonably have concluded that

testimony on what the Board might do in a

hypothetical future case would have been too

speculative to assist the jury.” Id.

The Arizona Supreme Court rejected Cruz’s

remaining claims and affirmed his conviction and

death sentence. Id. at 57a. Cruz filed his first petition

for postconviction relief in 2012; the postconviction

court denied relief and the Arizona Supreme Court

denied discretionary review. App. 3a. In 2014, Cruz

initiated federal habeas corpus proceedings. Id. The

district court denied habeas relief on March 31, 2021.

Cruz v. Shinn, 2021 WL 1222168 (D. Ariz. March 31,

2021). His appeal to the Ninth Circuit is stayed

pending these certiorari proceedings. Cruz v. Credio et

al., No. 21–99005, Dkt. # 17 (9th Cir. Nov. 9, 2021).

C. Lynch v. Arizona and Cruz’s successive

postconviction proceeding.

After its decision in Cruz’s direct appeal, the

Arizona Supreme Court consistently held in multiple

cases that Simmons did not apply in Arizona. See, e.g.,

State v. Hardy, 283 P.3d 12, 24, ¶ 58 (Ariz. 2012); State

v. Garcia, 226 P.3d 370, 391, ¶ 111 (Ariz. 2010). It

reached that conclusion in part because, until 2012,

6

Arizona law had permitted the imposition of a paroleeligible life sentence for defendants convicted of first

degree murder. See A.R.S. § 13–703(A) (2000),

renumbered as A.R.S. § 13–751(A). But in 1994,

Arizona amended its parole statutes to effectively

abolish parole for all inmates convicted of felony

offenses. See A.R.S. § 41–1604.09(I). “Accordingly, at

the time of [Cruz’s] sentencing, defendants facing death

sentences were statutorily eligible to receive life-withparole sentences but, as a practical matter, could not be

paroled.” Andriano v. Shinn, 2021 WL 184546, *46 (D.

Ariz. Jan. 19, 2021). In other words, when Cruz was

sentenced, the applicable sentencing statute (A.R.S.

§ 13–703(A) (2000)) allowed for a parole-eligible

sentence, but Arizona’s parole statute (A.R.S.

§ 41–1604.09(I)) did not allow release on parole for

defendants, like Cruz, who committed crimes after

1993.

In Lynch, this Court held that the Arizona Supreme

Court had misinterpreted Simmons when it concluded

that Arizona’s parole laws did not entitle capital

defendants to a parole ineligibility instruction. Lynch

held that, because A.R.S. § 41–1604.09(I) prohibits

parole for felonies committed after 1993, Arizona

capital defendants are ineligible for parole within

Simmons’ meaning. 578 U.S. at 613–16. Thus, when

the State places future dangerousness at issue, Arizona

courts must instruct juries that state law does not

permit the capital defendant to be released on parole.

Id. at 615–16.

In March 2017, Cruz filed a successive petition for

post-conviction relief in Pima County Superior Court,

7

arguing that Lynch entitled him to a new sentencing

proceeding under Arizona Rule of Criminal Procedure

32.1(g). Under Rule 32.1(g), a defendant may obtain

relief if “[t]here has been a significant change in the

law that if determined to apply to defendant’s case

would probably overturn the defendant’s conviction or

sentence.”

The postconviction court denied relief, finding that

Lynch was not a significant change in the law under

the rule, was not retroactively applicable, and even if

applied to his case it would not have “probably

overturned” his sentence. App. B. On the latter point,

the court noted that Cruz never asked the trial court

for the relief Simmons and Lynch afford—the ability, if

future dangerousness is at issue, to inform the jury of

his parole ineligibility through jury instructions or

argument by counsel. App. 15a–16a. The court also

found that, in light of the weak mitigation Cruz

presented and his murder of a police officer in the line

of duty, “[n]othing in the record nor the exhibits

suggest that had Mr. Cruz’ jury been informed of his

parole ineligibility, his sentence would have ‘probably’

been overturned.” Id. at 16a–17a.

Cruz filed a petition for review in the Arizona

Supreme Court. The Arizona Supreme Court granted

review, but affirmed the denial of relief, holding that

Lynch did not constitute a significant change in the law

under Rule 32.1(g). App. 2a.

The court noted that, under state law, a Rule 32.1(g)

“significant change in the law” “requires some

transformative event, a clear break from the past.”

App. 6a (quoting State v. Shrum, 203 P.3d 1175, 1178

8

(Ariz. 2009)). Lynch, however, “did not declare any

change in the law representing a clear break from the

past.” App. 8a. The law Lynch relied

on—Simmons—”was clearly established at the time of

Cruz’s trial, sentencing, and direct appeal, despite the

misapplication of that law by Arizona courts.” Id. at 9a.

The state court concluded that this Court’s decision in

Lynch “did not change any interpretation of federal

constitutional law, the holding of Simmons did not

change between Cruz’s crime and his first PCR

petition, and no Supreme Court precedent was

overruled or modified.” Id. at 11a. As a result, under

Arizona law, Lynch “does not represent a significant

change in the law for purposes of Rule 32.1(g)” and

Cruz was not entitled to collateral relief. Id. at 9a, 11a.1

Cruz now seeks certiorari review of the Arizona

Supreme Court’s decision.

REASONS FOR NOT GRANTING THE WRIT

This Court grants certiorari “only for compelling

reasons,” Sup. Ct. R. 10, and Cruz presents no such

reason. In particular, Cruz has not established that the

state court has “decided an important federal question

in a way that conflicts with relevant decisions of this

1

Cruz refers twice in passing to the Arizona Supreme Court’s

purported “ongoing hostility to Simmons and Lynch.” Pet. at 27;

see also id. at 3. This accusation is baseless. After Lynch, the

Arizona Supreme Court has remanded multiple capital cases for

a new penalty phase trial based on the lack of a parole ineligibility

instruction where future dangerousness was at issue. See State v.

Hulsey, 408 P.3d 408, 439, ¶ 144 (Ariz. 2018); State v. Rushing, 404

P.3d 240, 251, ¶ 44 (Ariz. 2017); State v. Escalante-Orozco, 386

P.3d 798, 830, ¶ 127 (Ariz. 2017).

9

Court.” Sup. Ct. R. 10(c). Rather, Cruz “assert[s] error

consist[ing] of erroneous factual findings [and]

misapplication of a properly stated rule of law,” for

which this Court “rarely grant[s]” certiorari review.

Sup. Ct. R. 10. Because the decision below rested

entirely on state law grounds and Cruz merely seeks

correction of the state court’s denial of his petition for

postconviction relief, this Court should deny certiorari

I.

Cruz waived any claim under Simmons or

Lynch.

At trial, Cruz waived the argument he now

makes—that he was entitled to a jury instruction on

parole-ineligibility. He never argued that the State

placed his future dangerousness at issue and did not

request a parole-ineligibility instruction in rebuttal.

Error occurs under Simmons “where a capital

defendant’s future dangerousness is at issue and the

only sentencing alternative to death available to the

jury is life imprisonment without possibility of parole,”

and the trial court refuses to allow the defendant “‘to

inform the jury of his parole ineligibility, either by a

jury instruction or in arguments by counsel.’” Lynch,

578 U.S. 613, 613–14 (2016) (quoting Shafer, 532 U.S.

at 39). Cruz waived the issue because he made no

request for parole-ineligibility instruction or

permission to argue parole ineligibility. Accordingly,

the trial court did not refuse a parole-ineligibility

instruction or prevent counsel from arguing the matter.

Simmons error thus did not occur.

Instead, Cruz requested remedies Simmons does

not afford. As noted previously, he asked the judge

before trial to decide whether he would sentence Cruz

10

to natural life or life with the possibility of release after

25 years if the jury did not return a death sentence,

and he proffered mitigation testimony from the

Chairman of the Arizona Board of Executive Clemency

that the Board could only recommend release after 25

years, but could not order Cruz to be paroled. Then,

although the trial court offered to “give an instruction

of the consequences of a life or natural life sentence …

if the defendant so requests,” R.T. 3/1/05, at 6, Cruz

failed to act on the judge’s offer—he “never requested

to inform the jury, through instructions or argument,

that, under state law, he was ineligible for parole.”

Cruz v. Ryan, 2018 WL 1524026, *49 (D. Ariz. March

28, 2018). On direct appeal to the Arizona Supreme

Court, Cruz similarly failed to argue that, under

Simmons, he should have been permitted to inform the

jury of parole-ineligibility “either by a jury instruction

or in arguments by counsel.” Lynch, 578 U.S. at 613–14

(quoting Shafer, 532 U.S. at 39).

Because Cruz did not request a Simmons

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

one, and Cruz thereby waived any claim that he is

entitled to relief under Lynch. See State v. Bush, 423

P.3d 370, 388, ¶ 74 (Ariz. 2018) (“In short, Simmons

‘relief is foreclosed by the defendant’s failure to request

a parole ineligibility instruction at trial.’”) (quoting

Campbell v. Polk, 447 F.3d 270, 289 (4th Cir. 2006));

see also Townes v. Murray, 68 P.3d 840, 850 (4th Cir.

1995) (“[T]he fact that a jury was not informed of the

defendant’s parole ineligibility would not violate the

defendant’s due process rights, as recognized

by Simmons, if that lack of information was due to the

defendant’s own inaction. . . . “[T]he defendant’s right,

11

under Simmons, is one of opportunity, not of result.”).

Given Cruz’s waiver of the issue, this Court should

deny certiorari.

II.

The Arizona Supreme Court’s decision

rested on an independent and adequate

state law ground.

“This Court lacks jurisdiction to entertain a federal

claim on review of a state court judgment ‘if that

judgment rests on a state law ground that is both

independent of the merits of the federal claim and an

adequate basis for the court’s decision.’” Foster v.

Chatman, 578 U.S. 488, 497 (2016) (quoting Harris v.

Reed, 489 U.S. 255, 260 (1989)). A state law ground is

independent of the merits of the federal claim when

resolution of the state procedural law question does not

“depend[] on a federal constitutional ruling.” Stewart v.

Smith, 536 U.S. 856, 860 (2002). And a state

procedural rule constitutes an adequate bar to federal

review if it was “firmly established and regularly

followed” when applied by the state court. Ford v.

Georgia, 498 U.S. 411, 424 (1991).

As relevant here, when Cruz initiated his successive

postconviction relief proceeding in 2017, Rule 32 of the

Arizona Rules of Criminal Procedure provided for relief

from judgment if a defendant established that “[t]here

has been a significant change in the law that if

determined to apply to defendant’s case would probably

overturn the defendant’s conviction or sentence.” Ariz.

R. Crim. P. 32.1(g) (2017). Arizona courts have defined

a “significant change in the law” under that rule as a

“clear break” or “sharp break with the past.” State v.

Slemmer, 823 P.2d 41, 49 (Ariz. 1991). “The archetype

12

of such a change occurs when an appellate court

overrules previously binding case law,” such as in Ring

v. Arizona, 536 U.S. 584, 609 (2002). State v. Shrum,

203 P.3d 1175, 1179, ¶ 16 (Ariz. 2009). A statutory or

constitutional amendment constituting a clear break

from prior law can also be a significant change under

the rule. See id. at 1179, ¶ 17. In addition to

establishing the existence of a significant change in the

law, a petitioner must also show that the change

applies retroactively before obtaining relief under Rule

32.1(g). See Slemmer, 823 P.2d at 51.

The initial determination whether there has been a

significant change in the law—on which the Arizona

Supreme Court rested its decision here—is a question

of state law. The Arizona Supreme Court’s conclusion

that Lynch was not a significant change in the law

under Rule 32.1(g) did not depend on “an antecedent

ruling on federal law [such as] the determination of

whether federal constitutional error has been

committed.” See Ake v. Oklahoma, 470 U.S. 68, 75

(1985). The state court did not address whether a

federal constitutional error under Lynch or Simmons

had occurred; instead, it looked only to whether Lynch

constituted a significant change to existing law and

concluded that it did not. App. 6a–11a. Thus, because

the Arizona Supreme Court’s decision did not depend

on a federal constitutional ruling, its resolution of a

state law procedural question under Rule 32.1(g) is not

reviewable by this Court. See Foster, 578 U.S. at 497.

Cruz argues, however, that the Arizona Supreme

Court was required to apply Lynch to his case under

federal retroactivity principles mandating application

13

of intervening decisions involving “settled” rules.

Petition at 14–21 (citing, e.g., Yates v. Aiken, 484 U.S.

211 (1988); and Chaidez v. United States, 568 U.S. 342,

347 (2013)). His argument is misplaced because the

Arizona Supreme Court did not reach (nor was it

required to) the question whether Lynch applies

retroactively.

Cruz’s argument concerning Lynch’s retroactive

application ignores altogether the independent and

adequate state ground doctrine. In fact, in Yates, on

which Cruz heavily relies, this Court acknowledged

that it was permitted to engage in a retroactivity

analysis in part because the state court had not “placed

any limit on the issues that it will entertain in

collateral proceedings.” 484 U.S. at 218. Since the state

court “considered the merits of the federal claim,” it

ha[d] a duty to grant the relief that federal law

requires.” Id.

Here, in contrast, Rule 32 places affirmative limits

on the issues that Arizona courts will entertain in

collateral proceedings, and especially a successive

collateral proceeding such as this one. And because

Cruz’s claim did not meet Arizona’s procedural

requirements under Rule 32.1(g), the Arizona Supreme

Court (unlike the state court in Yates) did not consider

the merits of the federal claim. The federal

retroactivity decisions Cruz relies on are thus

irrelevant to the state law procedural question on

which the Arizona Supreme Court resolved Cruz’s

petition.

Cruz incorrectly asserts that Arizona, like the court

in Yates, does not place limits on the constitutional

14

issues it will entertain in collateral proceedings

because it “broadly entitles defendants to challenge

their conviction or sentence on the ground that it was

imposed ‘in violation of the United States or Arizona

Constitutions.’” Petition at 17 (quoting Ariz. R. Crim.

P. 32.1(a)). But Arizona courts will only entertain

constitutional claims under Rule 32.1(a) in an initial

postconviction relief proceeding. Ariz. R. Crim. P.

32.4(a) (“Any notice not timely filed may only raise

claims pursuant to Rule 32.1(d), (e), (f), (g) or (h).”)

(2017).

Cruz is surely aware of these state law procedural

limitations. In fact, undoubtedly because a claim under

Rule 32.1(a) would have been procedurally barred

under state law, Cruz did not present his Lynch claim

to the Arizona courts under that provision, but rather

under Rule 32.1(g). See Successive Petition for PostConviction Relief, State v. Cruz, Pima Co. Sup. Ct.

CR2003-1740 (March 9, 2017) (seeking relief under

Lynch solely pursuant to Rule 32.1(g)). Cruz is thus

incorrect that the Arizona courts do not place limits on

the constitutional claims they will entertain in

collateral proceedings.

Cruz also contends, in a footnote, that Rule 32.1(g)

is not an adequate state law ground because it is not

“firmly established and regularly followed.” Petition at

27 n.2 (quoting Beard v. Kindler, 558 U.S. 53, 60

(2009)). His assertion is incorrect.

A state procedural rule is consistently and regularly

applied, and thus “adequate” to bar federal review, if it

is applied in the vast majority of cases. See Dugger v.

Adams, 489 U.S. 401, 410 n.6 (1989) (noting that a few

15

cases failing to apply the procedural rule do not

undermine the state’s consistent application in the vast

majority of cases); Moran v. McDaniel, 80 F.3d 1261,

1269–70 (9th Cir. 1996). And a “discretionary state

procedural rule can serve as an adequate ground to bar

federal habeas review … even if the appropriate

exercise of discretion may permit consideration of a

federal claim in some cases but not others.” Beard, 558

U.S. at 60–61.

Specifically, Cruz argues that Rule 32.1(g) is not

firmly established and regularly followed because in

Shrum, 203 P.3d 1175, the Arizona Supreme Court

stated that a significant change in the law exists “when

an appellate court overrules previously binding case

law,” which he asserts contrasts with the decision

below, and because Slemmer, 823 P.2d 41, “adher[es] to

Yates even in the context of a claim under Rule

32.1(g).” Petition at 27 n.2. He misconstrues these state

court decisions applying Rule 32.1(g).

First, Shrum’s statement that a significant change

in the law occurs “when an appellate court overrules

previously binding case law” is consistent with the

decision below. See 203 P.3d at 1178. In its decision

below, the Arizona Supreme Court addressed that

principle from Shrum, noting that it had found a

significant change in the law when Ring, 536 U.S. 584,

overruled Walton v. Arizona, 497 U.S. 639, 647 (1990),

and when Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 577 U.S. 190 (2016),

overruled case law permitting mandatory life-withoutparole sentences for juveniles. App. 6a–8a. The court

found that, in contrast to those situations, Lynch “did

16

not declare any change in the law representing a clear

break from the past.” Id. at 8a. Instead, Simmons, on

which Lynch relied, “was clearly established at the

time of Cruz’s trial, sentencing, and direct appeal,

despite misapplication of that law by Arizona courts.”

Id. at 9a. Thus, Cruz is incorrect that the decision

below is at odds with Shrum or applied Rule 32.1(g)

inconsistently.

Next, Slemmer addressed Yates’ theory of

retroactivity when discussing the second component of

a claim under Rule 32.1(g)—whether the significant

change in the law applies retroactively. See Slemmer,

823 P.2d at 46–47, 49–50. Significantly, the court in

Slemmer addressed retroactivity cases like Yates only

after finding that the decision which the defendant

sought to apply retroactively met Rule 32.1(g)’s first

requirement because it was a significant change in the

law. Slemmer, 823 P.2d at 49. Here, in contrast, the

Arizona Supreme Court never reached the question of

retroactivity (and therefore had no reason to address

Yates) because it found that Cruz failed to establish the

first requirement of a 32.1(g) claim, a significant

change in the law. Consequently, neither Shrum nor

Slemmer establishes that Arizona fails to consistently

and regularly apply Rule 32.1(g).

Finally, because the decision below rested on the

independent and adequate state law procedural

question of whether Lynch constituted a significant

change in the law, Cruz is incorrect that it creates a

split with other states’ courts and conflicts with “the

consensus approach to federal retroactivity in state

courts.” Petition at 21. Other states’ approaches to

17

retroactivity analysis have no relevance to Arizona’s

interpretation of Rule 32.1(g)’s opening requirement of

a significant change in the law. Because the court

below never reached the question of retroactivity, its

decision cannot have conflicted with how other states

have addressed retroactive application of this Court’s

decisions. Cruz’s attempt to manufacture a split among

state high courts thus fails.

III.

Even if Lynch’s retroactivity were at issue,

Cruz’s case presents a poor vehicle to

address it.

As explained previously, Cruz failed to request a

jury instruction on parole ineligibility and therefore no

Simmons error occurred in his case. And the question

Cruz asks this Court to address—whether Lynch must

be applied retroactively to cases on collateral

review—is irrelevant because, even if this Court were

to hold that Lynch is retroactive, this would not affect

the outcome of this case. Neither Simmons nor Lynch

required the trial court to sua sponte give a paroleineligibility instruction. Moreover, the court below

denied relief on an independent and adequate state law

ground, never reaching the federal retroactivity

question.

But even if Cruz had requested a parole-ineligibility

instruction, and the trial court rejected it, any

hypothetical Simmons/Lynch error was harmless.2

2

In support of his argument that the lack of a Simmons

instruction prejudiced his case, Cruz cites to a letter from a juror

stating that she would have voted for a sentence of life without

parole if that had been an option. Petition at 31. Cruz’s citation to

18

Accordingly, Cruz’s case presents a poor vehicle to

address the federal question he attempts to present.

First, the State did not place Cruz’s future

dangerousness at issue, which must occur before

Simmons entitles a capital defendant to inform the jury

of his parole ineligibility. See 512 U.S. at 156 (“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”). A

defendant’s future dangerousness is at issue if it is “a

logical inference from the evidence, or was injected into

the case through the State’s closing argument.” Kelly v.

South Carolina, 534 U.S. 246, 248 (2002) (quotation

omitted).

Here, the State did not present evidence of prior

arrests or convictions for violent acts, and there was no

suggestion that Cruz had a history of violent or

assaultive behavior. See, e.g., Kelly, 534 U.S. at 249,

252–53 (jury was encouraged to consider future

dangerousness based on evidence defendant had

created a shank in prison, made escape attempt that

included plan to use a female guard as a hostage, and

had developed inclination to kill anyone who “rubbed

the juror’s letter violates “the near-universal and firmly

established common-law rule in the United States flatly

prohibit[ing] the admissibility of juror testimony to impeach a jury

verdict,” Tanner v. United States, 483 U.S. 107, 117 (1987), and

should be disregarded. See also Ariz. R. Crim. P. 24.1(d) (“[T]he

court may not receive testimony or an affidavit that relates to the

subjective motives or mental processes leading a juror to agree or

disagree with the verdict.”).

19

him the wrong way”). Officer Hardesty’s murder did

not involve a random, unprovoked attack on a stranger,

which might suggest future dangerousness, but was

committed during Cruz’s attempt to evade arrest. Nor

did the prosecutor emphasize the murder’s brutality;

for example, the State did not allege as an aggravating

circumstance that the murder was cruel, heinous, or

depraved. See A.R.S. § 13–751(F)(6). Instead, the

victim’s status as a police officer in the line of duty was

the sole aggravating factor.

The purpose of a parole-ineligibility instruction

under Simmons is to “rebut the prosecution’s argument

that [the defendant] posed a future danger.” Lynch, 578

U.S. at 615; see also O’Dell v. Netherland, 521 U.S. 151,

167 (1997) (characterizing Simmons as affording a

“narrow right of rebuttal … in a limited class of capital

cases”). Here, there was little, if anything, for a parole

ineligibility instruction to rebut since the State did not

present future dangerousness as a reason to impose a

death sentence.

Moreover, the Arizona Supreme Court found on

direct review that Cruz’s mitigation evidence was less

than compelling:

The evidence presented on most of these

mitigating circumstances was weak, and Cruz

established little or no causal relationship

between the mitigating circumstances and the

crime. Moreover, much of the mitigating

evidence offered by Cruz was effectively rebutted

by the State.

20

App. 57a, ¶ 138. There is thus little reason to think

that a parole ineligibility instruction is likely to have

changed the jury’s sentencing verdict.

In light of the State’s failure to assert future

dangerousness, Cruz’s murder of a police officer in the

line of duty, and the weak mitigation evidence, the lack

of a parole ineligibility instruction in Cruz’s case was

harmless beyond a reasonable doubt. See Brecht v.

Abrahamson, 507 U.S. 619, 630 (1993) (harmlessbeyond-a-reasonable-doubt standard applies to

constitutional trial error). This case thus presents a

poor vehicle to address Lynch’s retroactivity, even if

that issue were properly before the Court.

CONCLUSION

The petition for writ of certiorari should be denied.

February 4, 2022

Respectfully submitted,

MARK BRNOVICH

Attorney General

of Arizona

JEFFREY L. SPARKS

Acting Chief Counsel for

the Capital Litigation

Section

*Counsel of Record

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

BRUNN W. ROYSDEN, III

Solicitor General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542–4686

CLDocket@azag.gov

Counsel for Respondent