Opposition Brief — Jonathan Ian Burns, Petitioner v. Arizona

No. 21-847

In the

Supreme Court of the United States

__________________

JOHNATHAN BURNS, STEVE BOGGS, RUBEN GARZA,

FABIO GOMEZ, STEVEN NEWELL, AND

STEPHEN REEVES,

Petitioners,

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

JEFFREY L. SPARKS

Acting Chief Counsel for

the Capital Litigation

Section

*Counsel of Record

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

BRUNN W. ROYSDEN, III

2005 N. Central Ave.

Solicitor General

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

Petitioners each sought 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 them to relief from their

death sentences because their juries were not

instructed about their ineligibility for parole. After

the postconviction court denied relief in each of their

cases, the Arizona Supreme Court summarily denied

discretionary review after concluding in State v. Cruz

(Cruz II), 487 P.3d 991 (Ariz. 2021), that Lynch was

not a “significant change in the law,” one of the

requirements for relief under Rule 32.1(g). Were the

Arizona courts nonetheless required to apply Lynch

retroactively to Petitioners’ cases?

ii

TABLE OF CONTENTS

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

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

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

STATEMENT OF THE CASE ....................................2

A. Legal Background – Simmons, Lynch, and

Cruz II.....................................................................2

B. Factual and Procedural Backgrounds of

Petitioners’ cases ....................................................6

1. Johnathan Burns ..............................................6

2. Steve Boggs .......................................................8

3. Ruben Garza ...................................................10

4. Fabio Gomez....................................................11

5. Steven Newell .................................................13

6. Stephen Reeves ..............................................14

REASONS FOR NOT GRANTING THE WRIT .......16

I. This joint petition is a poor vehicle for

addressing the question Petitioners present ......17

II. The Arizona Supreme Court’s decision in

Cruz II rests on an independent and adequate

state law ground ...................................................21

CONCLUSION ..........................................................27

iii

TABLE OF AUTHORITIES

CASES

Ake v. Oklahoma,

470 U.S. 68 (1985).................................................. 22

Andriano v. Shinn,

2021 WL 184546 (D. Ariz. Jan. 19, 2021) ............... 4

Beard v. Kindler,

558 U.S. 53 (2009).................................................. 25

Campbell v. Polk,

447 F.3d 270 (4th Cir. 2006) ................................. 18

Chaidez v. United States,

568 U.S. 342 (2013)................................................ 23

Dugger v. Adams,

489 U.S. 401 (1989)................................................ 25

Ford v. Georgia,

498 U.S. 411 (1991)................................................ 21

Foster v. Chatman,

578 U.S. 488 (2016).......................................... 21, 23

Harris v. Reed,

489 U.S. 255 (1989)................................................ 21

Lynch v. Arizona,

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

Miller v. Alabama,

567 U.S. 460 (2012)................................................ 26

Montgomery v. Louisiana,

577 U.S. 190 (2016)................................................ 26

Moran v. McDaniel,

80 F.3d 1261 (9th Cir. 1996) ................................. 25

Ring v. Arizona,

536 U.S. 584 (2002).......................................... 22, 26

iv

Shafer v. South Carolina,

532 U.S. 36 (2001).................................... 2, 7, 18, 19

Simmons v. South Carolina,

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

State v. Benson,

307 P.3d 19 (Ariz. 2013) ........................................ 16

State v. Bush,

423 P.3d 370 (Ariz. 2018) ...................................... 18

State v. Cruz (Cruz I),

181 P.3d 196 (Ariz. 2008) .................................... 2, 3

State v. Cruz,

487 P.3d 991 (Ariz. 2021) .............................. passim

State v. Escalante-Orozco,

386 P.3d 798 (Ariz. 2017) ........................................ 5

State v. Garcia,

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

State v. Hardy,

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

State v. Hulsey,

408 P.3d 408 (Ariz. 2018) ........................................ 5

State v. Rushing,

404 P.3d 240 (Ariz. 2017) ........................................ 5

State v. Shrum,

203 P.3d 1175 (Ariz. 2009) ........................ 22, 25, 26

State v. Slemmer,

823 P.2d 41 (Ariz. 1991) ............................ 22, 25, 26

Stewart v. Smith,

536 U.S. 856 (2002)................................................ 21

Townes v. Murray,

68 P.3d 840 (4th Cir. 1995) ................................... 18

v

Walton v. Arizona,

497 U.S. 639 (1990)................................................ 26

Yates v. Aiken,

484 U.S. 211 (1988).............................. 23, 24, 25, 26

STATUTES

A.R.S. § 13–703(A) (2000) ........................................... 4

A.R.S. § 13–703(F)(2) (2003) ..................................... 14

A.R.S. § 13–703(F)(5) (2002) ....................................... 9

A.R.S. § 13-703(F)(6) (2002) ........................................ 9

A.R.S. § 13-703(F)(6) (2003) ...................................... 14

A.R.S. § 13–703(F)(8) (1999) ..................................... 10

A.R.S. § 13-703(F)(8) (2002) ........................................ 9

A.R.S. 13–703(F)(9) (2003) ........................................ 14

A.R.S. § 13–751(A) ....................................................... 4

A.R.S. § 13–751(F)(2)............................................. 6, 15

A.R.S. § 13–751(F)(6)............................................. 6, 15

A.R.S. § 13–751(F)(6) (2011) ..................................... 12

A.R.S. § 13–751(F)(7)(a) ............................................ 15

A.R.S. § 41–1604.09(I) ................................................. 4

RULES

Ariz. R. Crim. P. 32.1(a) ........................................ 7, 24

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

Ariz. R. Crim. P. 32.2(a)(3) .............................. 7, 12, 18

Ariz. R. Crim. P. 32.2(b) ............................................ 24

Ariz. R. Crim. P. 32.4(a) (2017) ................................. 24

Sup. Ct. R. 10 ............................................................. 16

1

INTRODUCTION

Each of the six petitioners was convicted of firstdegree murder and sentenced to death in the Arizona

courts. Most of them did not ask the trial court to

instruct the jury, under Simmons v. South Carolina,

512 U.S. 154 (1994), that Arizona law did not allow

parole for defendants who committed felonies after

1993. After this Court held in Lynch v. Arizona, 578

U.S. 613 (2016), however, that Arizona capital

defendants were entitled to instructions under

Simmons when the State placed future dangerousness

at issue, each petitioner sought postconviction relief

under Rule 32 of the Arizona Rules of Criminal

Procedure based on the lack of Simmons instructions

at their trials.

The postconviction courts denied relief for various

and multiple reasons in these six cases, including, in

some, because the State did not place future

dangerousness at issue or because any failure to

instruct the jury on parole ineligibility was harmless.

The Arizona Supreme Court summarily denied review

in all six cases after it decided, in State v. Cruz (Cruz

II), 487 P.3d 991 (Ariz. 2021), that Lynch did not afford

postconviction relief under Arizona’s procedural rules

because it was not a “significant change in the law”

under Arizona Rule of Criminal Procedure 32.1(g).

Petitioners now contend that the Arizona Supreme

Court erred by failing to apply Lynch retroactively to

their cases. This joint petition, however, is a poor

vehicle for this Court to address the issue they

present. Four of the petitioners waived the issue by

failing to request a parole ineligibility instruction and

in almost all of the cases the question of Lynch’s

2

retroactivity is moot because the postconviction court

alternatively denied their claim on the merits.

Moreover, the Arizona Supreme Court’s decision in

Cruz II, which forms the basis of their challenge, rests

solely on an independent and adequate state law

ground under Arizona’s Rule 32.1(g).

STATEMENT OF THE CASE

A. Legal Background – Simmons, Lynch, and

Cruz II.

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. Id. 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 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).

The Arizona Supreme Court first addressed

Simmons in State v. Cruz (Cruz I), 181 P.3d 196 (Ariz.

2008). However, Cruz 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

3

the death penalty, the court would sentence him to life

or natural life in prison.” Id. at 207, ¶ 40. 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

207, ¶ 42. 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. at 207, ¶ 43.

Cruz also argued that the trial court abused its

discretion by precluding testimony from the Chairman

of the Arizona Board of Executive Clemency, who

would have testified that Cruz could not be paroled if

he received a life sentence. Id. at 207, ¶ 44. 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. at 207,

¶ 45. 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.

After Cruz I, the Arizona Supreme Court

consistently held 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 because, until

4

2012, Arizona law had permitted the imposition of a

parole-eligible 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 committed after 1993. 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-with-parole

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, from 1994 to

2012, the applicable sentencing statute for first-degree

murder (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 for parole for

defendants who committed crimes after 1993.

In Lynch v. Arizona, 578 U.S. 613 (2016), this

Court held that the Arizona Supreme Court had

misinterpreted Simmons when it held 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 Cruz II, the Arizona Supreme Court addressed

whether Lynch could support a claim under Arizona

5

Rule of Criminal Procedure 32.1(g), which allows

postconviction relief when “there has been a

significant change in the law that, if applicable to the

defendant's case, would probably overturn the

defendant's judgment or sentence.”

The court

concluded that it could not, holding that Lynch did not

constitute a “significant change in the law” under Rule

32.1(g). Cruz II, 487 P.3d at 995, ¶ 23.

The court noted that Lynch “did not declare any

change in the law representing a clear break from the

past.” Id. at 994, ¶ 16. 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

994, ¶ 17. The state court concluded that 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 995, ¶ 22. As a result, 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 994, ¶ 17, 995, ¶ 23. 1

Petitioners refer in passing to the Arizona Supreme Court’s

purported “ongoing hostility to Simmons and Lynch.” Petition at

28. 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).

1

6

B. Factual and Procedural Backgrounds of

Petitioners’ cases.

1. Johnathan Burns.

Petitioner Johnathan Ian Burns was convicted of

sexual assault, kidnapping, first-degree murder, and

misconduct involving weapons arising from the 2007

murder of Jackie H. Several weeks after Jackie met

Burns for a date, Jackie’s body was found in a remote

area with two fatal gunshot wounds to her head,

several skull fractures from blunt force impact, and

sperm matching Burns’ DNA in her body. Jackie’s

blood and earring were found in Burns’ truck and

cellphone records showed that, on the night of Jackie’s

disappearance, Burns drove to the area where Jackie’s

body was found and stayed there for several hours. A

handgun Burns’ fiancé had purchased for him—and

which police retrieved after Burns disposed of it—was

determined to have fired a bullet found near Jackie’s

body. Pet. App. 209a–211a.

The jury found two aggravating circumstances:

that Burns had a prior or contemporaneous felony

conviction under A.R.S. § 13–751(F)(2), and that the

murder was especially cruel, heinous, or depraved

under A.R.S. § 13–751(F)(6). After the penalty phase,

the jury determined that Burns should be sentenced

to death. Id. at 211a.

On appeal, Burns argued that he should have been

allowed to argue at sentencing that the consecutive

sentences on his non-capital convictions would ensure

he spent the rest of his life in prison. The Arizona

Supreme Court rejected this claim because Burns “had

no right to present evidence of his effective life

7

sentence to the jury because it would have been

irrelevant as a mitigating factor.” Id. at 254a. Burns

also raised, as one of several “constitutional claims

that he acknowledge[d] [the Arizona Supreme] Court

ha[d] previously rejected but that he wishes to

preserve for federal review,” a claim that the trial

court’s refusal to permit evidence or a jury instruction

regarding his ineligibility for parole violated his

constitutional rights. See id. at 271a; State v. Burns,

Ariz. Supreme Ct. No. CR-11-0060-AP, Opening Brief

(Jan. 23, 2013). The Arizona Supreme Court declined

to revisit its case law rejecting this claim.

In his postconviction relief proceeding, Burns

argued that the trial court’s failure to give a Simmons

instruction warranted relief under Arizona Rule of

Criminal Procedure 32.1(a) (conviction or sentenced

was “in violation of the United States or Arizona

constitutions”). He also argued that Lynch entitled

him to relief under Arizona Rule of Criminal

Procedure 32.1(g) (providing a ground for relief if

“there has been a significant change in the law that, if

applicable to the defendant's case, would probably

overturn the defendant's judgment or sentence”).

The postconviction court found Burns’ 32.1(a)

claim procedurally precluded under Rule 32.2(a)(3)

because it was adjudicated on direct appeal. The court

alternatively found that Burns was not entitled to a

parole ineligibility instruction under Simmons or

Lynch because he failed to establish a colorable claim

“that the State injected ‘future dangerousness’ either

as a logical inference from the evidence or by

argument.” Pet. App. 78a. Additionally, the court

found that “the requirements of Simmons, Shafer, and

8

Lynch were met by defense counsel ‘bring[ing]

[defendant’s parole ineligibility] to the jury’s attention

by way of argument.’” Id. at 82a (quoting Lynch, 578

U.S. 613).

The court likewise denied relief under Rule 32.1(g),

finding that Lynch was not a significant change in law,

was not retroactively applicable, and the trial court’s

failure to address parole ineligibility “did not impact

the jury’s determination to impose death.” Id. at 82a–

84a. Burns petitioned for review of this decision to the

Arizona Supreme Court and that court summarily

denied review without explanation shortly after it

issued its decision in Cruz II. Pet. App. 414a.

2. Steve Boggs.

Petitioner Steve Boggs was convicted and

sentenced to death in 2005 for the murders of Beatriz

Alvarado, Kenneth Brown, and Fausto Jimenez. On

the night of May 19, 2002, Boggs and Christopher

Hargrave entered a fast food restaurant where the

victims worked. Boggs later admitted that “the

victims were forced at gunpoint to lie down in the work

area of the restaurant, ordered to remove everything

from their pockets, ordered to march through the

cooler into the back freezer with their hands

interlaced on top of their heads, forced to kneel down,

and then shot in rapid succession.” Pet. App. 303a.

After Boggs and Hargrave left the freezer, Boggs

“heard screaming, at which point he returned to the

freezer and shot some more.” Id. Brown died almost

immediately from two gunshot wounds, Jimenez

escaped from the freezer and died from three gunshot

wounds shortly after dialing 911, and Alvarado

escaped out the backdoor and repeatedly asked for

9

help before dying from two gunshot wounds to her

back. Id. at 273a–274a.

The jury convicted Boggs of three counts of firstdegree murder and found three aggravating factors for

each murder: expectation of pecuniary gain, A.R.S.

§ 13–703(F)(5) (2002), murders committed in an

especially heinous, cruel, or depraved manner, § 13–

703(F)(6) (2002), and multiple homicides, § 13–

703(F)(8) (2002). The jury determined that Boggs

should be sentenced to death for the murders. Id. at

280a–281a.

At trial, Boggs did not request a jury instruction

stating that he was ineligible for parole. To the

contrary, he explicitly asked the trial court to instruct

to instruct the jurors that, “If you find the mitigation

is sufficiently substantial to call for leniency, the

Court will sentence the defendant either [sic] to life

imprisonment without the possibility of parole until at

least twenty-five years have passed.” Defendant’s

Requested Penalty Phase Jury Instructions, State v.

Boggs, Maricopa Co. Sup. Ct. No. CR2002-009759

(May 5, 2005) [R.O.A. 291], at page 5 (emphasis

added).

Despite his requested instruction, in 2018 Boggs

filed a successive petition for postconviction relief,

arguing that Lynch entitled him to relief under

Arizona Rule of Criminal Procedure 32.1(g). Pet. App.

114a. The court denied relief, finding that Lynch was

neither a significant change in the law under Rule

32.1(g) nor retroactively applicable. The court also

found that, even if applied to Boggs’ case, Lynch would

not have “probably overturned” the death sentences

under Rule 32.1(g) because “given the circumstances

10

of the offense coupled with evidence of Defendant’s

character and propensities, no single reasonable juror

would have imposed a life sentence rather than a

death sentence.” Id. For the same reason, the court

found any error under Lynch was harmless beyond a

reasonable doubt. Id. Boggs filed a petition for review

in the Arizona Supreme Court, which that court

denied summarily shortly after it decided Cruz II. Id.

at 416a.

3. Ruben Garza.

Petitioner Ruben Garza was convicted and

sentenced to death for the 1999 murders of Ellen

Franco and Lance Rush. On the night of December 1,

1999, Garza knocked on the door of the home where

Franco, who had recently separated from Garza’s

uncle, lived. Once inside, he shot and killed Franco.

Garza then entered the bedroom where Lance Rush,

who also lived in the home, was hiding. Rush fired at

Garza, hitting him in the arm, and Garza shot and

killed Rush. Before the murders, Garza had asked

acquaintances if they wanted to “get a little dirty” to

make some money and help him with some “family

problems.” Pet. App. 317a–321a.

The jury found Garza guilty of burglary and two

counts of first-degree murder. It rejected pecuniary

gain as an aggravating factor but found that Garza

committed multiple murders.

See A.R.S. § 13–

703(F)(8) (1999). The jury declined to impose the

death penalty for Ellen’s murder, but imposed the

death penalty for Garza’s murder of Rush. The trial

court sentenced Garza to life without possibility of

release for Ellen’s murder and 21 years in prison for

burglary. Pet. App. 321a.

11

At trial, Garza did not request a jury instruction

that he was ineligible for parole. Nor did he argue on

appeal that the trial court should have given such an

instruction. Instead, in 2017, he filed a successive

petition for postconviction relief arguing that Lynch

entitled him to a new capital sentencing under

Arizona Rule of Criminal Procedure 32.1(g).

Successive Petition for Post-Conviction Relief, State v.

Garza, Maricopa Co. Sup. Ct. No. CR1999–017624

(Oct. 23, 2017).

The postconviction court denied relief, concluding

that Lynch was not a significant change in the law and

was not retroactive. Pet. App. 129a–133a. The court

also found that applying Lynch to Garza’s case would

not have “probably overturned” his death sentence

under Rule 32.1(g) and that any error was harmless

beyond a reasonable doubt because a parole

ineligibility instruction would not have caused the

jury to impose a life sentence for Rush’s murder. Id.

at 133a–136a. Garza petitioned for review in the

Arizona Supreme Court, which that court denied

summarily after its decision in Cruz II. Id. at 418a.

4. Fabio Gomez.

Petitioner Fabio Gomez was convicted and

sentenced to death for the 1999 sexual assault and

murder of Joan Morane.

Morane lived in an

apartment complex where Gomez also lived with his

girlfriend and infant son. In December 1999, a friend

found Morane’s apartment door unlocked and her

furniture in disarray. That same day, Gomez’s

neighbor heard pounding on the wall and screaming

from Gomez’s apartment. When Gomez allowed police

to enter his apartment, they found blood on the carpet

12

and walls; Gomez first said the blood came from a cut

on his girlfriend’s foot, and later claimed it came from

a cat he had killed. Police then discovered Morane’s

body in a dumpster at the apartment complex; DNA

testing identified Gomez’s semen in Morane’s body

and Morane’s blood in Gomez’s apartment. Pet. App.

352a. The jury found Gomez guilty of first-degree

murder, kidnapping, and sexual assault.

The

sentencing jury found that the murder was especially

cruel under A.R.S. § 13–751(F)(6) (2011) and

determined he should be sentenced to death. Id. at

353a.

At trial, Gomez did not request a jury instruction

that he was ineligible for parole. Nor did he argue on

appeal that the trial court should have given such an

instruction. Instead, in 2018, he amended his petition

for postconviction relief to include claims that the trial

court erred by failing to give a parole ineligibility

instruction under Simmons/Lynch, and that trial and

appellate counsel were ineffective for failing to raise

the Simmons/Lynch issue.

Motion to Amend;

Amended Petition for Post-Conviction Relief, State v.

Gomez, Maricopa County Sup. Ct. No. CR2000–

090114 (March 13, 2018).

The postconviction court found that Gomez’s claim

that the trial court erred by failing to instruct on

parole ineligibility was precluded under Arizona Rule

of Criminal Procedure 32.2(a)(3) because Gomez

waived it by failing to present it on direct appeal. Pet.

App. 151a. The court alternatively found that Gomez’s

Simmons/Lynch claim failed on the merits because the

State did not place Gomez’s future dangerousness at

issue, Lynch is not retroactive, and the lack of a

13

Simmons instruction did not impact the jury’s

determination to impose a death sentence. Id. at

151a–155a. The court further found that trial and

appellate counsel neither performed deficiently, nor

was Gomez prejudiced. Id. at 155a–158a.

Gomez filed a petition for review in the Arizona

Supreme Court, which that court summarily denied

after its decision in Cruz II. Id. at 420a.

5. Steven Newell.

Petitioner Steven Newell was convicted and

sentenced to death for the 2001 murder of 8-year-old

Elizabeth B. On May 23, 2001, Elizabeth left for

school and never returned. A neighbor saw her

walking to school with Newell (who Elizabeth knew

because he had dated her sister) following closely

behind. Police found Elizabeth’s body in an irrigation

ditch, rolled up in carpeting. There was a ligature

around her neck, and she had bruises and abrasions

on her hands, wrists, forearms, head, and face.

Injuries to her genitals were consistent with sexual

assault. Newell admitted to police that he had been

with Elizabeth in the field on the morning she

disappeared and that “he had grabbed her and placed

her between his legs while he rubbed up against her,

causing him to ejaculate.” A witness identified Newell

as the person he saw standing in the ditch where

Elizabeth’s body was found.

And DNA testing

identified sperm that was present in Elizabeth’s

underwear as Newell’s. Pet. App. 368a–374a.

The jury found Newell guilty of first-degree

murder, sexual conduct with a minor, and kidnapping.

As aggravating factors, the jury found that Newell had

14

a prior conviction of a serious offense, A.R.S. § 13–

703(F)(2) (2003); the murder was especially heinous,

cruel or depraved, A.R.S. § 13–703(F)(6) (2003); and

the victim was under 15 years of age, A.R.S. 13–

703(F)(9) (2003). The jury determined that Newell

should be sentenced to death for Elizabeth’s murder.

Pet. App. 374a–375a.

At trial, Newell did not request a jury instruction

that he was ineligible for parole. Nor did he argue on

appeal that the trial court should have given such an

instruction. In 2018, however, he filed a successive

petition for postconviction relief arguing that Lynch

entitled him to a new capital sentencing under

Arizona Rule of Criminal Procedure 32.1(g). Petition

for Post-Conviction Relief, State v. Newell, Maricopa

County Sup. Ct. No. CR2001–009124 (Jan. 1, 2018).

The postconviction court denied relief because the

State did not place Newell’s future dangerousness at

issue, his counsel argued to the jury that a life

sentence would result in Newell serving the entirety

of his life in prison, Lynch is not retroactive, nothing

in the record suggested that a Simmons instruction

would have changed the jury’s verdict, and any error

in failing to instruct the jury on parole ineligibility

was harmless beyond a reasonable doubt. Pet. App.

165a–172a.

Newell filed a petition for review in the Arizona

Supreme Court, which that court summarily denied

after its decision in Cruz II. Id. at 422a.

6. Stephen Reeves.

Petitioner Stephen Reeves was convicted and

sentenced to death for the 2007 murder of Norma

15

Gabriella Contreras. On a Saturday morning in June

2007, Reeves entered an office where 18-year-old

Contreras was working alone and demanded her car

keys and cell phone. Contreras attempted to press an

alarm button and Reeves, who was much larger, forced

her to the floor and straddled her. For eight minutes,

while Contreras “screamed and struggled,” Reeves

beat her, hit her with a piece of concrete, wrenched her

neck, and attempted to strangle her with his hands

and a piece of wood. Finally, Reeves slit Contreras’

throat with a box cutter. Reeves was arrested shortly

after he drove away in Contreras’ car with her cell

phone in his pocket. Pet. App. 402a–404a.

The jury found Reeves guilty of first-degree

murder, armed robbery, burglary, kidnapping, and

auto theft. As aggravating circumstances, the jury

found that Reeves had previously been convicted of a

serious offense; the murder was especially cruel,

heinous, or depraved; and Reeves was on release at the

time of the murder. See A.R.S. § 13–751(F)(2), (F)(6),

(F)(7)(a). The jury could not reach a verdict on the

pecuniary gain aggravating factor or the appropriate

sentence, but a second jury found that aggravator

proven and determined that Reeves should be

sentenced to death for the murder. Pet. App. 403a–

404a.

Before trial, Reeves unsuccessfully sought a jury

instruction on parole ineligibility. Pet. App. 199a–

200a. On appeal, Reeves argued that the trial court

erred by denying his motion to preclude evidence of

future dangerousness or, alternatively, to permit him

to present evidence that he likely would not be

released if he received a life sentence. The Arizona

16

Supreme Court rejected this claim, citing State v.

Benson, 307 P.3d 19, 33 (Ariz. 2013). Pet. App. 407a–

408a.

In his petition for postconviction relief, Reeves

argued that Lynch entitled him to a new capital

sentencing under Arizona Rule of Criminal Procedure

32.1(g). Petition for Post-Conviction Relief, State v.

Reeves, Maricopa Co. Sup. Ct. No. CR2007–135527

(Nov. 29, 2017), at 39–42. The postconviction court

denied relief, finding that Lynch was not a “significant

change in the law” under Rule 32.1(g) and was not

retroactively applicable. Pet. App. 201a–203a. Reeves

filed a petition for review in the Arizona Supreme

Court, which that court summarily denied after its

decision in Cruz II. Id. at 424a.

REASONS FOR NOT GRANTING THE WRIT

This Court grants certiorari “only for compelling

reasons,” Sup. Ct. R. 10, and Petitioners present no

such reason. In particular, Petitioners 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, Petitioners “asser] 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 is waived or moot in most of Petitioners’

cases, the operative state court decision rests on state

law grounds, and Petitioners merely seek correction of

the state court’s denial of their petitions for

postconviction relief, this Court should deny

certiorari.

17

I. This joint petition is a poor vehicle for

addressing the question Petitioners present.

Petitioners ask this Court to address the question

whether Lynch must be applied retroactively to cases

on state collateral review. Petition, at i. However, the

procedural

histories

of

their

cases

create

insurmountable impediments to addressing that

question in this joint petition. Some of the petitioners

waived the Simmons/Lynch issue by failing to request

a parole ineligibility instruction; the question

presented is moot in several of the cases because the

postconviction courts addressed their Simmons/Lynch

claim on the merits and denied relief; and in a

majority of the cases the postconviction courts found

any error under Simmons/Lynch harmless. Thus,

even if the question presented were worthy of

certiorari review, this joint petition proves an

unsuitable vehicle to address it.

First, only Petitioners Burns and Reeves preserved

the argument that they were entitled to a parole

ineligibility instruction under Simmons (and then

Lynch) by requesting the instruction at trial. The

other four petitioners did not ask their trial courts to

inform their juries that they could not receive a paroleeligible sentence and therefore any ruling by this

Court that Lynch is retroactive would not affect their

cases. 2 In fact, Boggs not only failed to request such

an instruction, he affirmatively asked the trial court

to tell the sentencing jurors that, if they rejected

2 See, infra, 6–16 (describing factual and procedural background

of Petitioners’ cases; see also Petition at 9–11 (noting that Burns

and Reeves requested instruction on parole ineligibility, but

failing to assert the other Petitioners did so).

18

death, life with the possibility of parole was a potential

sentence he could receive.

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. at 613–14 (quoting Shafer, 532 U.S. at 39).

Because Boggs, Garza, Gomez, 3 and Newell did not

request a Simmons instruction, the trial courts in

their cases could not have erred by failing to give one.

These four petitioners thus waived any claim that they

are 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, under Simmons, is one of

opportunity, not of result.”). Since the majority of

Petitioners waived the issue presented, and therefore

3 The postconviction court in Gomez’s case specifically found that

his claim that the trial court erred by failing to instruct on parole

ineligibility was precluded under Arizona Rule of Criminal

Procedure 32.2(a)(3) because Gomez waived it by failing to

present it at trial or on direct appeal. Pet. App. 151a.

19

would not be affected by any ruling that Lynch is

retroactive, this Court should deny certiorari.

Second, in half of petitioners’ cases the

postconviction court denied the Simmons/Lynch claim

on the merits, rendering the question presented moot

for them. As noted above, the court in Burns’ case

found that his Simmons/Lynch claim would have

failed on the merits because the State did not place his

future dangerousness at issue and because, in any

event, counsel’s argument that Burns would never be

released from prison satisfied Simmons and Lynch’s

requirement that he be permitted to tell the jury he

was ineligible for parole. Pet. App. 77a–82a. See

Lynch, 578 U.S. at 613–14 (defendant not entitled to

parole ineligibility instruction unless “future

dangerousness is at issue”; Simmons entitles

defendant to inform jury of parole ineligibility “either

by a jury instruction or in arguments by counsel”)

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

The court in Gomez’s case likewise found that any

Simmons/Lynch claim failed on the merits because

“‘future dangerousness’ was not placed at issue by the

State.” Pet. App. 151a–154a.

And the court in Newell’s case found that a Lynch

instruction was not warranted because the State did

not inject future dangerousness into his case, and

because defense counsel’s argument that Newell

would spend the rest of his life imprison no matter the

sentence he received satisfied any right he had under

Lynch. Pet. App. 167a–168a.

Even if this Court granted certiorari and adopted

Petitioners’ position regarding the question presented,

20

it would not affect the judgment in Burns’, Gomez’s

and Newell’s cases because the postconviction courts

addressed their Lynch claims on the merits and found

no error. These Petitioners fail to address those

findings by the state court. The question presented is

thus a moot one for their cases. Because the question

presented is moot in half of petitioners’ cases, this

Court should deny certiorari.

Similarly, any hypothetical Simmons/Lynch error

was found non-prejudicial or harmless by the

postconviction courts in a majority of Petitioners’

cases. The postconviction judge in Burns’ case found

that the trial court’s failure to address his parole

ineligibility “did not impact the jury’s determination

to impose death.” Pet. App. 83a–84a. In Boggs’ case

the court found that “given the circumstances of the

offense coupled with evidence of Defendant’s character

and propensities, no single reasonable juror would

have imposed a life sentence rather than a death

sentence,” had the been instructed on parole eligibility

and that any error under Lynch was harmless beyond

a reasonable doubt. Pet. App. 120a.

Garza’s judge likewise concluded that any error

was harmless beyond a reasonable doubt because a

parole ineligibility instruction would not have caused

the jury to impose a life sentence for Rush’s murder.

Id. at 133a–136a. In Gomez’s case, the postconviction

court found that the lack of a Simmons instruction did

not impact the jury’s determination to impose a death

sentence. Id. at 155a.

And the postconviction judge in Newell’s case

found that nothing in the record suggested that a

Simmons instruction would have changed the jury’s

21

verdict, and that any error in failing to instruct the

jury on parole ineligibility was harmless beyond a

reasonable doubt. Id. at 170a–172a.

These five Petitioners fail to acknowledge or

address the state-court findings that the lack of a

parole ineligibility instruction was harmless. Even if

this Court held that Lynch must be applied

retroactively to all cases on collateral review (which it

should not), the unchallenged harmless error findings

below would nonetheless prevent five of the six

petitioners from obtaining any relief. This Court

should deny certiorari review.

II. The Arizona Supreme Court’s decision in

Cruz II rests 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).

Rule 32.1(g) of the Arizona Rules of Criminal

Procedure provides for relief from judgment if a

22

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.” 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 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 in Cruz II—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.” 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. See Cruz II, 487 P.3d at 994–

95, ¶¶ 13–22. Thus, because the Arizona Supreme

Court’s decision did not depend on a federal

23

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.

Petitioners argue, however, that the Arizona

Supreme Court was required to apply Lynch to their

cases under federal retroactivity principles mandating

application of intervening decisions involving “settled”

rules. Petition at 15–22 (citing, e.g., Yates v. Aiken,

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

U.S. 342, 347 (2013)). Their argument argument is

misplaced because the Arizona Supreme Court in Cruz

II did not reach (nor was it required to) the question

whether Lynch applies retroactively.

Petitioners’

argument

concerning

Lynch’s

retroactive application ignores altogether the

independent and adequate state ground doctrine. In

fact, in Yates, on which Petitioners heavily rely, 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 because Petitioners’

Lynch claims 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 Petitioners rely on are

thus irrelevant to the state law procedural question on

24

which the Arizona Supreme Court resolved Cruz II

and Petitioners’ cases.

Petitioners incorrectly assert that Arizona, like the

state court in Yates, does not place limits on the

constitutional 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 18 (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).

Petitioners surely are aware of these state law

procedural limitations. For example, as noted above,

the postconviction court in Burns’ case found his claim

under Rule 32.1(a) procedurally barred. And most

likely for that very reason, most (if not all) of the

Petitioners elected to present their Lynch claims to the

Arizona courts under Rule 32.1(g), a ground for relief

that is generally exempt from preclusion for failing to

have raised it in a prior proceeding. See Ariz. R. Crim.

P. 32.2(b) (unlike claims under 32.1(a), claims under

32.1(g) (among others) not precluded for failure to

present them in prior proceeding). Petitioners thus

are incorrect that the Arizona courts do not place

limits on the constitutional claims they will entertain

in collateral—especially successive collateral—

proceedings.

Petitioners also contend, in a footnote, that Rule

32.1(g) is not an adequate state law ground because it

25

is not “firmly established and regularly followed.”

Petition at 28 n.2 (quoting Beard v. Kindler, 558 U.S.

53, 60 (2009)). That assertion is incorrect.

A state procedural rule is consistently and

regularly applied, and thus “adequate” to bar federal

review, if the rule is applied in the vast majority of

cases. See Dugger v. Adams, 489 U.S. 401, 410 n.6

(1989) (noting that a few 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, Petitioners argue that Rule 32.1(g) is

not firmly established and regularly followed because

in Shrum, the Arizona Supreme Court stated that a

significant change in the law exists “‘when an

appellate court overrules previously binding case

law,’” which they assert contrasts with Cruz II, 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 28 n.2 (quoting Shrum, 203 P.3d at 1178).

They misconstrue 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” does not conflict with

Cruz II. See Shrum, 203 P.3d at 1178. In Cruz II, the

Arizona Supreme Court addressed that principle from

Shrum, noting that it had found a significant change

26

in the law when Ring v. Arizona, 536 U.S. 584 (2002),

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. Cruz II, 487 P.3d at

994, ¶¶ 13–15. The court found that, in contrast to

those situations, Lynch “did not declare any change in

the law representing a clear break from the past.” Id.

at 994, ¶ 16. 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

994, ¶ 17. Thus, Petitioners are incorrect that Cruz II

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 at issue satisfied

32.1(g)’s first requirement because it was a significant

change in the law. Slemmer, 823 P.2d at 49. In

Cruz II, 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).

27

Finally, because Cruz II rested on the independent

and adequate state law procedural question of

whether Lynch constituted a significant change in the

law, Petitioners are incorrect that it creates a split

with other states’ courts and conflicts with “the

consensus approach to federal retroactivity in state

courts.” Petition at 22. Other states’ approaches to

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 in Cruz II the

Arizona Supreme Court never reached the question of

retroactivity, its decision cannot have conflicted with

how other states have addressed retroactive

application of this Court’s decisions. Petitioners’

attempt to manufacture a split among state high

courts thus fails.

CONCLUSION

The petition for writ of certiorari should be denied.

February 4, 2022

Respectfully submitted,

MARK BRNOVICH

Attorney General

JEFFREY L. SPARKS

Acting Chief Counsel for

the Capital Litigation

Section

Counsel of Record

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

OFFICE OF THE ARIZONA

Brunn W. Roysden, III

ATTORNEY GENERAL

Solicitor General

2005 N. Central Ave.

Phoenix, AZ 85004

602–542–4686

CLDocket@azag.gov

Counsel for Respondent