Amicus Curiae 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 WRIT OF CERTIORARI TO

THE ARIZONA SUPREME COURT

________________

BRIEF OF AMICI CURIAE FEDERAL COURTS

SCHOLARS IN SUPPORT OF PETITIONER

________________

Melanie L. Bostwick

Counsel of Record

Thomas M. Bondy

Sheila Baynes

Melanie Hallums

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, N.W.

Washington, DC 20005

(202) 339-8400

mbostwick@orrick.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 1

ARGUMENT ............................................................. 8

I.

The State-Law Ground Is Inadequate

Because It Rested On A Novel

Interpretation Of An Inconsistently

Applied Rule Of State Procedure. .................... 11

II. The State-Law Ground Is Also Inadequate

Because The Rule Of State Procedure It

Announced Is Unduly Burdensome And

Discriminates Against A Federal Right. ......... 15

CONCLUSION ........................................................ 19

APPENDIX A – List of Amici Curiae ..................... 1a

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Barr v. City of Columbia,

378 U.S. 146 (1964)..............................................15

Beard v. Kindler,

558 U.S. 53 (2009)................................ 8, 10, 11, 12

Bouie v. City of Columbia,

378 U.S. 347 (1964)................................................5

Broad River Power Co. v. South

Carolina ex rel. Daniel,

281 U.S. 537 (1930)................................................8

Brown v. Davenport,

142 S. Ct. 1510 (2022)............................................5

Davis v. Wechsler,

263 U.S. 22 (1923)............................................7, 11

Ford v. Georgia,

498 U.S. 411 (1991)..............................................15

Foster v. Chatman,

578 U.S. 488 (2016)................................................6

Harris v. Reed,

489 U.S. 255 (1989)............................................6, 7

Haywood v. Drown,

556 U.S. 729 (2009)................................................6

iii

Henry v. Mississippi,

379 U.S. 443 (1965)..............................................18

Howlett v. Rose,

496 U.S. 356 (1990)................................................6

James v. Kentucky,

466 U.S. 341 (1984)........................................5, 6, 8

Johnson v. Lee,

578 U.S. 605 (2016).................................. 13, 14, 16

Lee v. Kemna,

534 U.S. 362 (2002)..........................................8, 11

Lynch v. Arizona,

578 U.S. 613 (2016)................................................3

Michel v. Louisiana,

350 U.S. 91 (1955)................................................17

Michigan v. Long,

463 U.S. 1032 (1983)..............................................5

Montgomery v. Louisiana,

577 U.S. 190 (2016)................................................7

NAACP v. Alabama ex rel. Flowers,

377 U.S. 288 (1964)........................................10, 16

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958)..........................................9, 12

Osborne v. Ohio,

495 U.S. 103 (1990)..............................................16

iv

Simmons v. South Carolina,

512 U.S. 154 (1994)................................................3

State v. Bigger,

492 P.3d 1020 (Ariz. 2021) ..................................15

State v. Rendon,

776 P.2d 353 (Ariz. 1989) ....................................15

State v. Shrum,

203 P.3d 1175 (Ariz. 2009) ................ 12, 14, 15, 18

State v. Slemmer,

823 P.2d 41 (Ariz. 1991) ................................15, 17

State v. Towery,

64 P.3d 828 (Ariz. 2003) ......................................14

State v. Valencia,

386 P.3d 392 (Ariz. 2016) ....................................12

Teague v. Lane,

489 U.S. 288 (1989)............................................2, 7

Walker v. Martin,

562 U.S. 307 (2011).................................. 10, 11, 16

Ward v. Bd. of Cnty. Comm’rs of Love

Cnty.,

253 U.S. 17 (1920)..................................................9

Williams v. Georgia,

349 U.S. 375 (1955)................................................9

Yates v. Aiken,

484 U.S. 211 (1988)............................................2, 7

v

Rules

Ariz. R. Crim. P. 32.1(g) .................................... passim

Ariz. R. Crim. P. 32.2 ..................................................2

Other Authorities

2 Federal Habeas Corpus Practice and Procedure

(2021) ....................................................................12

Eve Brensike Primus, Federal Review of

State Criminal Convictions: A

Structural Approach to Adequacy

Doctrine, 116 Mich. L. Rev. 75 (2017) ...................9

INTEREST OF AMICI CURIAE 1

Amici are law professors who teach and write

about the federal courts, habeas corpus, and the relationship between state and federal law. A list of amici

is attached as Appendix A.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Whether at trial, on appeal, or in collateral proceedings, state courts are the primary forum for enforcement of constitutional rights in state criminal

cases. Precisely because our federal system entrusts

state courts with such great responsibility, that responsibility is constrained in two ways that are key to

this case.

First, state courts may not insulate their decisions from this Court’s review by relying on “inadequate” state-law grounds: state-law grounds that are

either irregular or hostile to the underlying right the

state has empowered its courts to enforce. A robust

adequacy doctrine helps guarantee that states do not

nullify federal rights either by imposing unanticipated procedural roadblocks or by frustrating enforcement of federal rights. And given the increasing tilt

against federal habeas relief, a clear and consistently

applied adequacy rule is essential to enforcement of

constitutional law. The more exclusive the role of

1 The parties have consented to the filing of this amicus

brief. No counsel for a party authored the brief in whole or in

part. No party, counsel for a party, or any person other than

amici curiae and their counsel made a monetary contribution intended to fund the preparation or submission of the brief.

2

state courts in enforcing constitutional rights in criminal cases, the greater the need to ensure that those

courts are not using procedure to trim the scope of the

underlying federal law. Such an adequacy doctrine,

moreover, has no effect on states’ legitimate interests

in the consistent enforcement of neutral procedure.

Second, under Yates v. Aiken, 484 U.S. 211 (1988),

and Teague v. Lane, 489 U.S. 288 (1989), a state postconviction claimant is entitled to the benefit of settled

constitutional law—that is, “old law”—at any point

during collateral review. In the language of Teague, a

claimant is entitled to the benefit of a decision that is

new if the law the new decision applies is old. The

principle that old law always applies ensures that

states effectively perform their function as the primary guarantors of constitutional rights in criminal

cases, and that state enforcement maps onto the constitutional scope of the federal right.

Old law is always supposed to apply in state postconviction proceedings, and state post-conviction

schemes often provide mechanisms for prisoners to

assert intervening appellate decisions. In Arizona,

that gateway is Rule 32.1(g). Specifically, Rule 32.1(g)

is designed to give claimants a gateway to collateral

remedies that, because of a change in controlling law,

could not have been secured in a prior proceeding.

Whereas Rule 32.2 precludes a post-conviction remedy for any claim that was or could have been raised

in an earlier proceeding, Rule 32.1(g) allows claimants seeking a new state post-conviction proceeding

the opportunity to obtain relief when there has been

“a significant change in the law.” Ariz. R. Crim. P.

32.1(g). Under Rule 32.1(g), the “newness” of a legal

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holding had always been measured against the way

Arizona courts had enforced the federal right. That

way, when Arizona courts misapplied established federal precedent, Rule 32.1(g) ensured that claimants

retained a remedy when the Supreme Court corrected

that misapplication.

Until now. Arizona courts failed to apply settled

law in this case, and then altered their procedural

rules mid-stream so as to deny John Montenegro Cruz

a remedy for that mistake. Mr. Cruz was sentenced to

death by a jury that was instructed unconstitutionally—a jury permitted to believe that Mr. Cruz could

get out of prison if he was not sentenced to death. In

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

Court had clearly established that due process required Mr. Cruz’s sentencing jury to be informed that

the only alternative to an execution was a life spent

behind bars. Simmons reflects the intuitive proposition that the prosecution should not be permitted to

falsely suggest that, if not executed, a defendant will

endanger the public at some future time.

Mr. Cruz was entitled to a Simmons instruction

at the time his conviction became final, but Arizona

courts refused to properly honor Simmons for years,

insisting on a narrow misreading of this Court’s holding. Eventually, this Court stepped in to clarify that

Simmons required the jury instruction, notwithstanding the remote possibility of clemency or subsequent

legislative change, and summarily reversed the Arizona Supreme Court in Lynch v. Arizona, 578 U.S.

613 (2016) (per curiam). In doing so, this Court highlighted that Arizona’s justifications for ignoring Simmons had already been rejected in Simmons itself. Id.

4

at 615-16. In other words, Lynch was “old law” that

Arizona had failed to apply both at trial and on direct

review.

Lynch made clear that criminal defendants had

been constitutionally entitled to the instruction Mr.

Cruz requested since this Court decided Simmons.

Rule 32.1(g) was supposed to ensure that Mr. Cruz

could get back into court, and Teague was supposed to

ensure that Lynch applies when he gets there. But the

Arizona Supreme Court improvised a procedural rule

to avoid a state post-conviction remedy. Specifically,

the Arizona Supreme Court foreclosed otherwise

available state remedies by reinterpreting Rule

32.1(g) to exclude significant changes “in the application of the law.” Pet. App. 9a. In doing so, the Arizona

Supreme Court broke from its longstanding approach

to that provision. The Arizona Supreme Court held

that the “newness” of the claim was determined by

reference to whether the requested remedy applied

precedent that was new under this Court’s retroactivity decisions—not, as it previously had, in relation to

its own precedents. Under this new interpretation of

Rule 32.1(g), there was no remedy for the Arizona

courts’ error because Mr. Cruz sought to assert what

Lynch had established to be “old law.”

The decision below appears tailor-made to deny

claimants like Mr. Cruz from ever receiving the benefit of Simmons—a constitutional guarantee that, but

for the Arizona Supreme Court’s own mistake, should

have been applied the first time the state courts encountered the question. Before Cruz, the Arizona Supreme Court’s interpretation of Rule 32.1(g)

functioned in concert with this Court’s retroactivity

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doctrine, and for good reason: Rule 32.1(g)’s purpose

was to afford relief to those individuals who, through

no fault of their own, could not obtain a judicial remedy until there was a change in precedent—an objective entirely consistent with Teague and Yates. But

after Lynch clearly communicated that Arizona had

long misapplied the settled law of Simmons, the Arizona Supreme Court wiped away the state post-conviction remedy. Specifically, the Arizona Supreme

Court concocted a novel interpretation of Rule 32.1(g)

that was both untethered to decades of Arizona precedent and hostile to the Simmons right. If Rule

32.1(g) precludes relief where state courts previously

failed to apply this Court’s settled precedent and enforce a federal constitutional right, then the Arizona

Supreme Court’s improvisation nullifies Mr. Cruz’s

Simmons right—and jeopardizes other federal constitutional rights that could be left without any remedy.

Cf. Brown v. Davenport, 142 S. Ct. 1510 (2022) (further limiting the availability of federal habeas relief).

This Court has made clear that state courts cannot evade their duty to faithfully apply federal constitutional rights by inventing novel and unpredictable

procedural requirements. “[A]n 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.”

Bouie v. City of Columbia, 378 U.S. 347, 354 (1964). A

state procedural rule is inadequate unless it is “firmly

established and regularly followed,” James v. Kentucky, 466 U.S. 341, 348-49 (1984). See also Michigan

v. Long, 463 U.S. 1032, 1040 (1983) (“Respect for the

independence of state courts, as well as avoidance of

rendering advisory opinions, have been the

6

cornerstones of this Court’s refusal to decide cases

where there is an adequate and independent state

ground.”). As this Court recently explained, it will decline to hear a federal claim where a state-court 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)).

The state-law ground invoked by the Arizona Supreme Court is inadequate to support the decision.

First, the Arizona Supreme Court’s reinterpretation

of Rule 32.1(g) is not “firmly established and regularly

followed,” James, 466 U.S. at 348-49. The novel and

inconsistent application was far from settled, and Mr.

Cruz could not have foreseen it. Second, it places an

insurmountable burden on the exercise of federal constitutional rights while discriminating against federal

law and undermining a federal interest—all without

advancing any conceivable state interest.

The Arizona Court’s decision also flies in the face

of the Supremacy Clause, which animates this Court’s

adequate and Supreme independent state grounds

doctrine. This Court considers whether adequate and

independent grounds exist not only to ensure comity,

but also to protect constitutional rights and the supremacy of federal law. “The Supremacy Clause forbids state courts to dissociate themselves from federal

law because of disagreement with its content or a refusal to recognize the superior authority of its source.”

Howlett v. Rose, 496 U.S. 356, 371 (1990). See, e.g.,

Haywood v. Drown, 556 U.S. 729, 736 (2009)

(“[A]lthough States retain substantial leeway to

7

establish the contours of their judicial systems, they

lack authority to nullify a federal right or cause of action they believe is inconsistent with their local policies.”); Davis v. Wechsler, 263 U.S. 22, 24 (1923)

(Holmes, J.) (“If the Constitution and laws of the

United States are to be enforced, this Court cannot

accept as final the decision of the state tribunal as to

what are the facts alleged to give rise to the right or

to bar the assertion of it even upon local grounds.”).

States that choose to provide a collateral forum to

enforce constitutional rights may not improvise procedural rules to disfavor particular rights. The Supremacy Clause requires that state courts provide

defendants with at least the federal constitutional

safeguards in place at the time their convictions became final. Montgomery v. Louisiana, 577 U.S. 190,

204-05 (2016); accord id. at 219 (Scalia, J., dissenting). This is a modest but critical restriction on the

otherwise wide latitude states are afforded in adjudicating constitutional rights. And it extends to all “settled” or “old” rules regardless of whether those rules

were applied correctly by the state court at the time

an individual’s conviction became final—in other

words, on collateral review, state courts must apply

the federal law they ought to have applied in the first

place. See Yates, 484 U.S. at 216-17; Teague, 489 U.S.

at 307 (recognizing that Yates requires states to apply

old law). The fact that the decision below is contrary

to federal law further underscores the importance of

this Court exercising review.

8

ARGUMENT

This Court has jurisdiction to review the Arizona

Supreme Court’s decision because its reliance on Rule

32.1(g) is an inadequate state-law basis for its decision. Adequacy doctrine developed to ensure that

states faithfully adhere to federal law, especially

when individual constitutional rights are at stake.

Our judicial federalism tolerates a degree of nonuniformity in the adjudication of federal rights to promote comity, but state procedural rules are afforded

such latitude only when then they are applied consistently, foreseeably, and in a manner that does not unduly burden assertion of federal rights or amount to

exorbitant formalism.

Therefore, “[e]ven though the constitutional protection invoked be denied on nonfederal grounds, it is

the province of this Court to inquire whether the decision of the state court rests upon a fair or substantial basis. If unsubstantial, constitutional obligations

may not be thus evaded.” Broad River Power Co. v.

South Carolina ex rel. Daniel, 281 U.S. 537, 540

(1930). “The question whether a state procedural ruling is adequate is itself a question of federal law.”

Beard v. Kindler, 558 U.S. 53, 60 (2009). This Court

has “framed the adequacy inquiry by asking whether

the state rule in question was ‘firmly established and

regularly followed.’” Id. See also Lee v. Kemna, 534

U.S. 362, 376 (2002) (“Ordinarily, violation of ‘firmly

established and regularly followed’ state rules … will

be adequate to foreclose review of a federal claim.”);

James, 466 U.S. at 348-49 (“Kentucky’s distinction between admonitions and instructions is not the sort of

firmly established and regularly followed state

9

practice that can prevent implementation of federal

constitutional rights.”).

This Court has exercised its jurisdiction in many

cases where it found the state ground inadequate, especially where state courts have invoked procedural

rules in a manner that would insulate violations of

federal constitutional rights from review. See, e.g.,

Ward v. Bd. of Cnty. Comm’rs of Love Cnty., 253 U.S.

17, 22 (1920) (“It therefore is within our province to

inquire not only whether the [federal] right was denied in express terms, but also whether it was denied

in substance and effect, as by putting forward nonfederal grounds of decision that were without any fair or

substantial support.”); Williams v. Georgia, 349 U.S.

375, 383 (1955) (“[W]e are not concluded from assuming jurisdiction and deciding whether the state court

action in the particular circumstances is, in effect, an

avoidance of the federal right.”); NAACP v. Alabama

ex rel. Patterson, 357 U.S. 449, 457-58 (1958) (“Novelty in procedural requirements cannot be permitted

to thwart review in this Court applied for by those

who, in justified reliance upon prior decisions, seek

vindication in state courts of their federal constitutional rights.”); see also Eve Brensike Primus, Federal

Review of State Criminal Convictions: A Structural

Approach to Adequacy Doctrine, 116 Mich. L. Rev. 75,

80 (2017) (“[P]rocedural adequacy doctrine gives federal courts the power and the duty to declare state

procedural rules inadequate when those rules unduly

burden defendants’ abilities to assert violations of

their federal rights, and that is precisely what many

state postconviction labyrinths do.”).

10

As explained further below, the state-law ground

is inadequate. Its “heads we win, tails you lose” formulation is exactly the sort of mischief the doctrine

evolved to capture. The Arizona Supreme Court’s rule

creates the quintessential Catch-22: An Arizona prisoner wishing to benefit from a decision by this Court

through the Rule 32.1(g) gateway must first satisfy

the rule’s requirement that there has been a significant change in the law. But any successful claimant

must also demonstrate that, under Teague, she qualifies for retroactive application of this Court’s precedents—i.e., that the constitutional rule at stake is “old

law” for federal retroactivity purposes. Under the Arizona Supreme Court’s new interpretation of Rule

32.1(g), the courthouse doors slam shut anytime Arizona courts previously misapplied a constitutional

rule on the ground that the decision is not “new” for

purposes of Rule 32.1(g) because the law it applies is

“old” for purposes of retroactivity. In other words, petitioners like Mr. Cruz are denied the benefit of a rule

they had been entitled to all along for the very reason

that they were entitled to it all along.

That Kafka-esque outcome illustrates why this

Court has been willing to disregard procedural

grounds deployed to thwart enforcement of federal

rights. “We have … been mindful of the danger that

novel state procedural requirements will be imposed

for the purpose of evading compliance with a federal

standard.” Kindler, 558 U.S. at 64 (Kennedy, J., concurring) (citing NAACP v. Alabama ex rel. Flowers,

377 U.S. 288, 293-302 (1964)). “[A] state procedural

ground would be inadequate if the challenger shows a

‘purpose or pattern to evade constitutional guarantees,’” Walker v. Martin, 562 U.S. 307, 321 (2011)

11

(quoting Kindler, 558 U.S. at 65 (2009) (Kennedy, J.,

concurring)), or where a rule is applied “in a surprising or unfair manner,” id. at 320.

It is enough that the Arizona Supreme Court’s interpretation of Rule 32.1(g) is novel, has been inconsistently applied, and imposes an undue burden on

federal constitutional rights. But Arizona’s demonstrated hostility to Simmons is the final nail in the

coffin of its purportedly adequate state-law basis for

ignoring Lynch. By throwing up a brand-new procedural roadblock with its reinterpretation of Rule

32.1(g), it continues to evade its obligations to apply

federal constitutional law, and to discriminate

against the federal right at issue. In the words of Justice Holmes, “[w]hatever spring[]s the State may set

for those who are endeavoring to assert rights that the

State confers, the assertion of Federal rights, when

plainly and reasonably made, is not to be defeated under the name of local practice.” Davis, 263 U.S. at 24

(quoted in Lee, 534 U.S. at 376).

I.

The State-Law Ground Is Inadequate

Because It Rested On A Novel Interpretation

Of An Inconsistently Applied Rule Of State

Procedure.

Perhaps the most glaring reason the Arizona Supreme Court’s decision does not rest on an adequate

state ground is that it created a new interpretation of

Rule 32.1(g) out of whole cloth. Newly adopted state

procedural rules are deemed inadequate for purposes

of this Court’s review. “We have not allowed state

courts to bar review of federal claims by invoking new

procedural rules without adequate notice to litigants

12

who, in asserting their federal rights, have in good

faith complied with existing state procedural law.”

Kindler, 558 U.S. at 63-64 (Kennedy, J., concurring);

see also Patterson, 357 U.S. at 457 (“[S]uch a local procedural rule, although it may now appear in retrospect to form part of a consistent pattern of

procedures to obtain appellate review, cannot avail

the State here, because petitioner could not fairly be

deemed to have been apprised of its existence.”); 2

Federal Habeas Corpus Practice and Procedure § 26.2

n.50 (2021) (listing dozens of federal circuit court decisions applying adequacy rules to allow federal habeas review).

Previously, the Arizona Supreme Court held that

a change is “significant” for purposes of Rule 32.1(g)

when it represents a “clear break from the past.” State

v. Valencia, 386 P.3d 392, 394 (Ariz. 2016). It described as the “archetyp[al]” situation creating such a

break “when an appellate court overrules previously

binding case law.” State v. Shrum, 203 P.3d 1175,

1178 (Ariz. 2009). And the “newness” of an intervening decision by this Court had always been determined by reference to prior application of the law in

Arizona courts. See infra at 15. But Cruz changed that

referent, looking instead only to this Court’s retroactivity decisions. And for the very first time in the decision below, the court reinterpreted “significant

change in the law” to exclude a “significant change in

the application of the law.” Pet. App. 9a. Never before

had an Arizona court held that the state-court decisions that erred in the application of federal law were

an exception to Rule 32.1(g). Nor had Arizona courts

followed any such practice. The Arizona Supreme

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Court’s reinterpretation of Rule 32.1(g) was in no way

“firmly established.”

On top of its novelty, that distinction makes no

sense. Every opinion of a court applying a statutory

provision or rule is an “application of the law.” So, too,

are decisions by state courts applying this Court’s

constitutional precedent. And it would surely come as

a great surprise to all the people denied a Simmons

instruction pre-Lynch that there was no “clear break”

or “significant change” created by Lynch: if they had

brought their petitions after Lynch, they might have

obtained relief under Simmons. Instead, they were

denied its due process guarantee. Lynch explicitly

overruled Arizona precedent on a significant question

of federal law; had it occurred earlier, those people

would have benefitted from it. By distinguishing “the

law” and its “application”—and then denying review

on the basis of that distinction—the Arizona Supreme

Court would use its own errors under Simmons and

Teague to shield its decisions from review.

The outlier status of Arizona’s rule further underscores its novelty and thus its inadequacy. In determining the adequacy of a state procedural bar, this

Court also looks to the practice of other states and of

federal courts. See, e.g., Johnson v. Lee, 578 U.S. 605,

609 (2016) (concluding that California’s rule was adequate where it was not at all “unique” and where

“[f]ederal and state habeas courts across the country

follow the same rule”). If a state’s rule is unique or

even unusual, it is “novel” in the sense that litigants

may not reasonably anticipate its application. In

Johnson, for example, the Court noted in finding a

lack of novelty that “[i]t appears that every State

14

shares this procedural bar in some form.” 578 U.S. at

609.

Here, the opposite is true. Arizona’s decision in

Cruz makes it an extreme outlier. As interpreted by

the Arizona Supreme Court, there is no means for

prisoners to correct major constitutional mistakes of

the courts’ own making—specifically, state-court mistakes about whether Supreme Court precedent is retroactive. If a prisoner loses a first post-conviction

proceeding on the ground that a U.S. Supreme Court

decision is nonretroactive, and if that reasoning is

later declared erroneous, the very fact of that error

bars the Rule 32.1(g) gateway. Among the states with

relevant decisional law or state statutes governing

the question at issue here—whether a non-new rule

receives a post-conviction forum—Alaska, California,

Delaware, Florida, Hawaii, Massachusetts, Mississippi, New York, South Carolina, Tennessee, Texas,

and Vermont all provide such a forum or cite with approval federal law indicating willingness to provide

such a forum. Only Arizona has announced, for the

Simmons claims at issue here, that it will not do so,

citing its novel interpretation of Rule 32.1(g). 2

2 Arizona insists that other states’ practices have no relevance to its interpretation of Rule 32.1(g). BIO at 16-17. Johnson

instructs otherwise. 578 U.S. at 609 (comparing a rule to other

states’ practices in determining whether it is novel and thus inadequate). What is more, the Arizona Supreme Court itself has

cited other states’ law in deciding cases under its previous interpretation of Rule 32.1(g). See, e.g., Shrum, 203 P.3d at 1180 (citing California law when evaluating whether an appellate

decision was “a significant change in the law”); State v. Towery,

15

As an entirely new invention, it is no surprise that

the Arizona Supreme Court’s legal rule also fails as

an adequate state ground because it is not “strictly or

regularly followed.” Barr v. City of Columbia, 378 U.S.

146, 149 (1964). The rule of state procedure announced in Cruz sharply departed from that court’s

previous jurisprudence. The Arizona Supreme Court

was in fact quite consistent on this point—which contradicts its newfound approach here—explaining

again and again over the course of decades that Rule

32.1(g) permits review where an intervening decision

overruled state-court precedent. See State v. Rendon,

776 P.2d 353, 354-55 (Ariz. 1989); State v. Slemmer,

823 P.2d 41, 47 (Ariz. 1991); Shrum, 203 P.3d at 1178;

State v. Bigger, 492 P.3d 1020, 1029 (Ariz. 2021). Because the state court’s new interpretation of Rule

32.1(g) was both novel and inconsistently applied, Mr.

Cruz “could not be ‘deemed to have been apprised of

its existence,’” Ford v. Georgia, 498 U.S. 411, 423

(1991). For these reasons, the state-law basis for the

decision is inadequate.

II. The State-Law Ground Is Also Inadequate

Because The Rule Of State Procedure It

Announced Is Unduly Burdensome And

Discriminates Against A Federal Right.

Even if the Arizona Supreme Court’s decision

were “firmly established and regularly followed,” this

Court’s review of the federal question would not be

64 P.3d 828, 832-33 (Ariz. 2003) (citing Nevada and Illinois law

in conducting retroactivity analysis). In Cruz, of course, the Arizona Supreme Court departed markedly from that earlier interpretation.

16

foreclosed. “[F]ederal courts must carefully examine

state procedural requirements to ensure that they do

not operate to discriminate against claims of federal

rights.” Martin, 562 U.S. at 321; cf. Johnson, 578 U.S.

at 609 (holding that California’s Dixon bar was “adequate to bar federal habeas review” where “[n]othing

suggests … that California courts apply the … bar in

a way that disfavors federal claims”). This Court has

repeatedly held that its review is not foreclosed where

“nothing would be gained,” Osborne v. Ohio, 495 U.S.

103, 124 (1990), by application of a state procedural

rule with “pointless severity,” Flowers, 377 U.S. at

297.

The Arizona Supreme Court’s application of Rule

32.1(g) fails this inquiry from every angle. It burdens

a federal right to the point of foreclosing all review for

a class of petitioners through no fault of their own. It

discriminates against federal law by treating decisions of this Court differently than its own decisions.

And it undermines a federal interest while advancing

no compelling state interest.

First, as described above, the state-court rule

makes it impossible to correct any judgment tainted

by Arizona’s cramped view of settled precedent. Under Arizona’s interpretation of Rule 32.1(g), the very

fact that a person ought to have benefitted from a rule

earlier makes it impossible for them to benefit from it

later. Such a Catch-22 would remove an entire class

of diligent claimants from the protection of Simmons—and in so doing, would raise “an insuperable

barrier to one making claim to federal rights” and

deny any “reasonable opportunity to have the issue as

to the claimed right heard and determined by the

17

State court,” Michel v. Louisiana, 350 U.S. 91, 93

(1955).

Second, the Arizona Supreme Court’s interpretation would privilege its own decisions overturning

state precedents as a “significant change in the law”—

thus allowing for review under Rule 32.1(g)—while

denying the same treatment when this Court does the

same thing. Compare Pet. App. 8a-9a (this Court’s decision in Lynch overruling Arizona precedent did not

qualify as a “significant change in the law”), with

Slemmer, 823 P.2d 41 (decision by Arizona Supreme

Court overruling Arizona precedent qualified as a

“significant change in the law”). Such a result cannot

be squared either with this Court’s pronouncements

on adequacy or with the Supremacy Clause. It discriminates against decisions of this Court by treating

them differently than the state court’s own decisions.

It discriminates against federal rights by denying

prisoner claimants the benefit of retroactive application of settled rules. And it flies in the face of the supremacy of this Court over state courts in matters of

federal law.

Third, the interpretation of Rule 32.1(g) announced by the Arizona Supreme Court advances no

state interest whatsoever. Rule 32.1(g) already creates a carveout from the general principle of finality

where, as here, a petitioner should have benefitted

from a ruling but could not have through no fault of

his own. The State identifies no policy justification for

the ruling below. It cannot: the purpose of Rule

32.1(g) is to provide an avenue for defendants to benefit from intervening decisions while promoting judicial economy by discouraging them from bringing a

18

laundry list of foreclosed claims. See Shrum, 203 P.3d

at 1178. That legitimate interest would be “substantially served,” Henry v. Mississippi, 379 U.S. 443, 448

(1965), by allowing Mr. Cruz’s claim to be heard—and

not served in any way by denying him. And Arizona’s

new interpretation of Rule 32.1(g) would eviscerate

that purpose when the intervening decision comes

from this Court.

The inescapable conclusion is that denying relief

is indeed the raison d’être for the Arizona Supreme

Court’s newly-minted interpretation of Rule 32.1(g).

The Arizona Supreme Court’s rule serves no purpose

other than to nullify Lynch, which held that the Arizona courts had been wrong about the scope of Simmons all along. For the Arizona Supreme Court’s

brand-new rule and Teague are mirror images: if a petitioner satisfies Teague because a new decision applies old law, he will necessarily be obstructed by

Rule 32.1(g). To categorically bar claims for the same

reason federal law demands their retroactive application is to flout the principles underlying Yates as well

as the division of labor between federal and state

courts and this Court’s supremacy.

In isolation, the Catch-22 at the core of the Arizona Supreme Court’s decision might look like nothing more than an inadvertent mistake. But the Catch22 is no coincidence. For years, the Arizona Supreme

Court refused to properly apply Simmons. After it was

instructed by this Court in no uncertain terms that it

must, it invented a new reason to avoid the tranche of

claims to which Mr. Cruz’s Simmons challenge belongs. The adequacy doctrine exists to preclude such

maneuvers.

19

CONCLUSION

For the foregoing reasons, this Court should reverse the judgment of the Arizona Supreme Court.

Respectfully submitted,

Melanie L. Bostwick

Counsel of Record

Thomas M. Bondy

Sheila Baynes

Melanie Hallums

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, N.W.

Washington, DC 20005

(202) 339-8400

mbostwick@orrick.com

Date June 21, 2022

1a

APPENDIX A

Amici are law professors who teach and write

about the federal courts, habeas corpus, and the relationship between state and federal law. Their titles

and institutional affiliations are provided for identification purposes only.

John H. Blume

Samuel F. Leibowitz Professor of Trial Techniques

Director, Cornell Death Penalty Project

Cornell Law School

Erwin Chemerinsky

Dean, Berkeley School of Law

Jesse H. Choper Distinguished Professor of Law

University of California, Berkeley School of Law

Randy A. Hertz

Vice Dean of N.Y.U. School of Law

Professor of Clinical Law

Director, Clinical and Advocacy Programs

New York University School of Law

Sheri Lynn Johnson

James and Mark Flanagan Professor of Law

Cornell Law School

Lee Kovarsky

Bryant Smith Chair in Law

The University of Texas at Austin School of Law

James S. Liebman

Simon H. Rifkind Professor of Law

Columbia Law School

2a

Leah Litman

Assistant Professor of Law

University of Michigan Law School

Justin Marceau

Professor of Law

Brooks Institute Faculty Research Scholar

University of Denver Sturm College of Law

Eve Brensike Primus

Yale Kamisar Collegiate Professor of Law

University of Michigan Law School

Judith Resnik

Arthur Liman Professor of Law

Yale Law School

Jordan M. Steiker

Judge Robert M. Parker Endowed Chair in Law

Co-Director, Capital Punishment Center

The University of Texas at Austin School of Law

Stephen I. Vladeck

Charles Alan Wright Chair in Federal Courts

The University of Texas at Austin School of Law

Keir M. Weyble

Clinical Professor of Law

Director, Death Penalty Litigation

Cornell Law School

Samuel Wiseman

Professor of Law

Penn State Law