Opposition Brief — Manuel Ovante, Jr., Petitioner v. Arizona

No. 22–7229

In the

Supreme Court of the United States

MANUEL OVANTE, JR.,

Petitioner,

v.

STATE OF ARIZONA,

Respondent.

On Petition for Writ of Certiorari

to the Superior Court of Maricopa County, Arizona

BRIEF IN OPPOSITION

KRISTIN K. MAYES

Attorney General

of Arizona

DANIEL C. BARR

Chief Deputy Attorney

General

JOSHUA D. BENDOR

Solicitor General

ALEXANDER W. SAMUELS

Principal Deputy Solicitor

General

LAURA CHIASSON

Deputy Solicitor General/

Acting Section Chief of

Capital Litigation

(Counsel of Record)

GREGORY HAZARD

Senior Litigation Counsel

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

400 West Congress

Suite S-315

Tucson, AZ 85701

(520) 628-6520

Laura.Chiasson@azag.gov

Counsel for Respondents

QUESTIONS PRESENTED FOR REVIEW

1. If a capital defendant’s future dangerousness is at issue and state law makes

the defendant ineligible for parole, the defendant has the right to inform the

jury of that fact. See Simmons v. South Carolina, 512 U.S. 154 (1994).

Ovante did not request to inform his jury of his parole-ineligibility, and his

counsel in fact informed the jury that Ovante would spend the rest of his life

in prison if not sentenced to death. Given that Ovante does not challenge

these facts, should this Court nonetheless vacate that court’s rejection of his

Simmons claim and order the court to again consider it?

2. During Ovante’s guilty-plea colloquy, the trial court inaccurately advised him

that he could receive a parole-eligible life sentence, and it later imposed such

a sentence for one of the murders. The Arizona Supreme Court subsequently

held that such an illegally lenient sentence is enforceable. Did the trial

court’s advice that Ovante could receive a parole-eligible life sentence render

his guilty plea involuntary?

2

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ................................................................. 2

TABLE OF CONTENTS ................................................................................................ 3

TABLE OF AUTHORITIES .......................................................................................... 4

INTRODUCTION .......................................................................................................... 5

STATEMENT OF THE CASE ....................................................................................... 6

REASONS FOR DENYING THE PETITION ............................................................ 10

I.

II.

The court below did not err in denying Ovante’s claim that his

due process rights were violated pursuant to Simmons and

Lynch....................................................................................................... 10

A.

No Simmons error is present because the trial court did

not prevent Ovante from informing the jury of his parole

ineligibility, and counsel informed the jury that Ovante

would spend the rest of his life in prison. ................................... 11

B.

This Court lacks jurisdiction to consider Ovante’s claim of

error in the trial court’s response to the jury question

about parole. ................................................................................ 12

The state court correctly rejected Ovante’s claim that his guilty

plea was involuntary. ............................................................................. 14

3

TABLE OF AUTHORITIES

Cases

Pages

Chaparro v. Shinn, 459 P.3d 50 (Ariz. 2020) .......................................................... 9, 15

Cruz v. Arizona, 143 S. Ct. 650 (2023) .............................................................. 7, 10, 12

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ........................................................... 13

Lynch v. Arizona, 578 U.S. 613 (2016) ........................................................ 7, 10, 11, 14

Michigan v. Long, 463 U.S. 1032 (1983) ..................................................................... 13

North Carolina v. Alford, 400 U.S. 25 (1970) ............................................................. 15

Ortiz v. Stewart, 149 F.3d 923 (9th Cir. 1998) ........................................................... 14

Pickens v. Howes, 549 F.3d 377 (6th Cir. 2008) .......................................................... 15

Simmons v. South Carolina, 512 U.S. 154 (1994) .............................. 2, 7, 8, 10, 11, 12

State v. Bush, 423 P.3d 370 (Ariz. 2018)..................................................................... 11

State v. Gourdin, 751 P.2d 997 (Ariz. Ct. App. 1988) ................................................. 16

State v. Villegas, 281 P.3d 1059 (Ariz. Ct. App. 2012) ............................................... 16

Stewart v. Smith, 536 U.S. 856 (2002) ........................................................................ 14

Sumner v. Mata, 449 U.S. 539 (1981) ........................................................................... 6

United States v. Greatwalker, 285 F.3d 727 (8th Cir. 2002) ...................................... 16

United States v. Roberts, 5 F.3d 365 (9th Cir. 1993) .................................................. 16

Wainwright v. Goode, 464 U.S. 78 (1983) ..................................................................... 6

Statutes

Ariz. Rev. Stat. Ann. § 13–751 (2008) ........................................................................... 6

Rules

Ariz. R. Crim. P. 32.1 ..................................................................................................... 7

Ariz. R. Crim. P. 32.2 ............................................................................................... 7, 13

Supreme Court Rule 10 ............................................................................................... 10

4

INTRODUCTION

Without the benefit of a plea agreement, Petitioner Manuel Ovante pleaded

guilty to two counts of first-degree murder and one count of aggravated assault, and

he admitted to both aggravating circumstances alleged by the prosecution. App. 9a–

10a. During the colloquy at the change of plea hearing, the court informed Ovante

that the possible sentences for first-degree murder were death, natural life, and life

with the possibility of parole after serving 25 years. App. 122a. During deliberations

at the conclusion of the penalty phase of the trial, the jury submitted the following

written question to the judge: “Does a life sentence mean a life sentence or would

parole be available?” App. 78a. In a written response, and with approval from the

parties, the judge stated that “a ‘life sentence’ may mean a natural life sentence

with no possibility of parole or a life sentence with the possibility to apply for parole

after serving 25 calendar years.” App. 78a.

The jury imposed a death sentence for the murder of one victim and a life

sentence for the murder of the other. App. 9a–10a. The trial court subsequently

ordered that the life sentence include the possibility of parole. App. 2a–6a.

5

STATEMENT OF THE CASE

The Arizona Supreme Court summarized the facts underlying Ovante’s

convictions and sentences as follows:1

On June 11, 2008, Ovante and three friends drove to Jordan

Trujillo’s house, hoping she would give them methamphetamine.

Trujillo refused, but Ovante returned repeatedly that day attempting

to obtain drugs. When Ovante and his friends entered Trujillo’s home

the last time, they encountered Trujillo, who was asleep on a living

room couch, Damien Vickers, and Gabriel Valenzuela. Without

expressing anger or distress, Ovante suddenly pulled out a gun.

Ovante pointed the gun at Valenzuela and yelled “[W]ho left the

safety on?” Ovante released the safety, pointed the gun again at

Valenzuela, and told him not to move. He then shot the sleeping

Trujillo twice in the head and began shooting at Valenzuela and

Vickers, wounding both of them. Trujillo appeared to die almost

instantly, but Vickers begged for help and Valenzuela called the police.

After the shooting, Ovante and two of his friends got into a truck

and tried to convince the third friend, Nathan Duran, to leave Vickers

behind. Duran instead dragged Vickers into the back of the truck.

Vickers was bleeding from his bullet wounds, holding onto Duran, and

asking to be taken to a hospital. Ovante refused to do so. After Vickers

died in the truck, Ovante decided to abandon his body in an alley.

Valenzuela, who remained in the apartment, survived the attack.

The State charged Ovante with two counts of first degree murder

and one count of aggravated assault. The State sought the death

penalty, alleging as aggravating circumstances that Ovante had been

previously convicted of a serious offense (the aggravated assault of

Valenzuela), see A.R.S. § 13–751(F)(2) (2008), and had been convicted

of one or more other homicides committed during the commission of

the offense, see id. § 13–751(F)(8).

_______________

1 The presumption of correctness applies to factual and credibility determinations made by the state

appellate court. See Wainwright v. Goode, 464 U.S. 78, 85 (1983); Sumner v. Mata, 449 U.S. 539,

546–57 (1981).

6

At the conclusion of the penalty phase, the jury determined Ovante

should be sentenced to life in prison for the murder of Trujillo and

sentenced to death for Vickers’ murder. Accordingly, the trial court

entered sentences of life with a possibility of parole after twenty-five

years for Trujillo’s murder, death for Vickers’ murder, and a mitigated

term of six years in prison for the aggravated assault on Valenzuela.

App. 8a–10a. The Arizona Supreme Court unanimously affirmed Ovante’s

convictions and sentences. App. 27a.

Ovante asserted in state court post-conviction relief proceedings, as relevant

here, that (1) his due process rights were violated pursuant to Simmons v. South

Carolina, 512 U.S. 154 (1994), because the jury was not instructed that he was

ineligible for parole and the trial court erroneously stated, in response to a jury

question, that a life sentence could include the possibility of parole; and (2) his

guilty plea was involuntary because the trial court incorrectly advised him during

the plea colloquy that he could be eligible for parole if not sentenced to death. App.

37a–38a.

The post-conviction court summarily dismissed Ovante’s claim of Simmons

error. First, the court found that because Ovante failed to raise a claim of Simmons

error on direct appeal, this claim was precluded under Arizona Rule of Criminal

Procedure 32.2(a)(3).2 App. 40a. The court alternatively rejected the claim on the

merits. The court held that Ovante failed to establish that he was entitled to

_______________

2 The court also found that Lynch v. Arizona, 578 U.S. 613 (2016), was not a significant change in the

law under Arizona Rule of Criminal Procedure 32.1(g), a holding that is no longer tenable after this

Court’s decision in Cruz v. Arizona, 143 S. Ct. 650 (2023).

7

Simmons relief because Ovante’s future dangerousness was not at issue, but even if

it was at issue, his counsel’s arguments to the jury that he would never be released

from prison if sentenced to life satisfied Simmons’ requirements. App. 40a–43a.

Finally, the court held that Ovante’s claim challenging the trial court’s

response to a jury question was precluded, and in any event Ovante was not

prejudiced by the response, which informed the jury that Ovante could be sentenced

to a parole-eligible life sentence. App. 53a. The court explained that the answer

“obviously did not impact the jury’s decision that Life was the appropriate penalty

for the murder of [Jordan] Trujillo.” App. 53a–55a. The court further noted that

Ovante failed to object to the court’s answer to the jury’s question. App. 53a–55a.

Regarding Ovante’s voluntariness claim, the post-conviction court granted an

evidentiary hearing to determine his “essential objective” in pleading guilty to the

crimes as charged; whether the guilty pleas were knowing, voluntary, and

intelligent; and whether counsel provided erroneous legal advice that was material

to Ovante’s decision to plead guilty. App. 39a. At the evidentiary hearing, the trial

court heard testimony from Ovante’s trial attorneys, the trial mitigation specialist,

Ovante, and two lay witnesses. App. 68a–71a. Ovante testified that he would not

have pleaded guilty if he had been informed that he could not receive a paroleeligible life sentence. App. 179a, 182a. The post-conviction court credited this

testimony, finding that parole eligibility was a material factor to Ovante’s decision

to plead guilty, among “other compelling factors.” App. 60a. Nonetheless, the court

dismissed

Ovante’s

petition

for

post-conviction

8

relief

because

subsequent

developments in Arizona law established that an illegally-lenient parole-eligible life

sentence was enforceable. App. 59a–65a.

While acknowledging that Arizona law does not provide for a parole-eligible

sentence, the post-conviction court noted that the Arizona Supreme Court had held

that a parole-eligible sentence, imposed by a trial court under the mistaken

impression that such a sentence was available, is enforceable. See Chaparro v.

Shinn, 459 P.3d 50, 51–52, ¶ 2 (Ariz. 2020); App. 63a–65a; App. 68a–73a. Indeed,

the trial court imposed a parole-eligible life sentence for one of Ovante’s murder

convictions. Although that sentence was “illegally lenient” at the time it was

imposed, Chaparro dictates that it must be enforced as it was imposed. Accordingly,

the post-conviction court found that the incorrect information did not render

Ovante’s guilty pleas involuntary.

The Arizona Supreme Court denied discretionary review of Ovante’s postconviction claims on November 8, 2022, in an unpublished order. App. 76a.

9

REASONS FOR DENYING THE PETITION

This Court grants certiorari “only for compelling reasons.” Sup. Ct. R. 10.

Ovante has presented no such reason for this Court to grant the writ here. While

the post-conviction court’s finding that Ovante’s Simmons claim was precluded is at

least partially overruled by Cruz v. Arizona, 143 S. Ct. 650 (2023), the court also

rejected the claim on the merits.

Ovante devotes little effort in his brief to

challenging the merits of that decision. See Pet. at 1, 16–18. Nor does he assert that

the court “decided an important federal question in a way that conflicts with

relevant decisions of this Court” in rejecting the claim. Sup. Ct. R. 10(c).

Likewise, Ovante has offered no compelling reason for this Court to review

the post-conviction court’s finding that his guilty pleas were not rendered

involuntary by the trial court’s misstatement that he could receive a parole-eligible

life sentence. Instead, he “assert[s] error consist[ing] of erroneous factual findings

[and] the misapplication of a properly stated rule of law,” for which this Court

“rarely grant[s]” certiorari review. Sup. Ct. R. 10. Ovante merely seeks correction of

the Arizona post-conviction court’s perceived error in denying his voluntariness

claim. This Court should deny Ovante’s certiorari petition.

I.

The court below did not err in denying Ovante’s claim that his due

process rights were violated pursuant to Simmons and Lynch.

Ovante claims that he is similarly-situated to defendants in other cases

which this Court recently vacated and remanded to the state court for further

consideration in light of its ruling in Cruz. Pet. at 17. He asks this Court to grant

the same relief here, and to “remand to allow the state court the opportunity to

10

properly consider his Simmons/Lynch claim.” Pet. at 18. He ignores, however, that

the state court has already addressed the merits of his Simmons/Lynch claim,

finding no error. Ovante fails to show that the state court was wrong on the merits.

As discussed below, the post-conviction court correctly found that no Simmons error

occurred at Ovante’s trial. Remand is unnecessary.

A.

No Simmons error is present because the trial court did not

prevent Ovante from informing the jury of his parole

ineligibility, and counsel informed the jury that Ovante would

spend the rest of his life in prison.

In Simmons, this Court held that, in a capital case “where the defendant’s

future dangerousness is at issue, and state law prohibits the defendant’s release on

parole, due process requires that the sentencing jury be informed that the

defendant is parole ineligible.” Simmons, 512 U.S. at 156. In those narrow

circumstances, the defendant is entitled to inform the jury of his parole ineligibility

“by way of argument by defense counsel or an instruction from the court.” Simmons,

512 U.S. at 169. However, Simmons places no affirmative duty on the court to

instruct the jury absent a request from the defendant.

Here, Ovante failed to request a Simmons instruction or otherwise ask to

inform the jury of his parole ineligibility at trial. As a result, “the trial court neither

refused to instruct, nor prevented [Ovante] from informing, the jury regarding his

parole ineligibility.” State v. Bush, 423 P.3d 370, 388, ¶ 75 (Ariz. 2018). In

particular, the trial court did not prevent Ovante from arguing that he was

ineligible for parole—and Ovante did so argue. Therefore, even assuming Ovante’s

11

future dangerousness was at issue, his due process rights under Simmons were not

violated.

Because Ovante did not seek to inform the jury that he was ineligible for

parole, his reliance on this Court’s decision in Cruz is unavailing. There, this Court

noted that at “trial, Cruz repeatedly sought to inform the jury of his parole

ineligibility,” but was thwarted by the trial court. 143 S. Ct. at 656. Here, in

contrast, the trial court did not deprive Ovante of the ability to inform the jury that

he was ineligible for parole.

Moreover, as the post-conviction court observed, Simmons’ requirements

were satisfied by counsel’s argument. App. 42a–43a. Ovante’s counsel argued that,

if sentenced to life, Ovante would spend the rest of his life in prison, and the

prosecutor did not dispute this assertion. R.T. 2/16/2010 at 61, 88–89, 91, 99, 103.

Ovante does not assert that the post-conviction court erred by finding that counsel’s

argument satisfied Simmons’ requirements. Because Ovante did not request that

the jury be informed of his parole-ineligibility, and counsel did in fact inform the

jury that Ovante would spend the rest of his life in prison, this Court should not

vacate the state court’s ruling or remand for the state court to again consider the

merits of this claim.

B.

This Court lacks jurisdiction to consider Ovante’s claim of

error in the trial court’s response to the jury question about

parole.

When the jury began deliberations, it sent the court a series of questions,

including the following: “Does a life sentence mean a life sentence or would parole

12

be available?” App. 78a. With approval from the parties, the trial court responded

that a life sentence “may mean a natural life sentence with no possibility of parole

or a life sentence with the possibility to apply for parole after serving 25 calendar

years.” App. 78a. In his post-conviction relief proceedings, Ovante argued that this

response constituted prejudicial and reversible error. The post-conviction court

found the claim precluded under Arizona law because it could have been raised on

appeal but was not. App. 53a; see Ariz. R. Crim. P. 32.2(a)(3). The court also rejected

the claim on its merits. App. 53a–55a.

This Court has “long recognized that ‘where the judgment of a state court

rests upon two grounds, one of which is federal and the other non-federal in

character, [its] jurisdiction fails if the non-federal ground is independent of the

federal ground and adequate to support the judgment.’” Michigan v. Long, 463 U.S.

1032, 1038 n.4 (1983) (quoting Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935)).

Here, the state court ruling rests upon the independent and adequate finding that

the claim was precluded under Arizona law.

In Arizona, a petitioner is precluded from post-conviction relief based on any

ground that: (1) could have been raised on direct appeal or in a post-trial motion; (2)

was finally adjudicated on the merits on appeal or in any previous collateral

proceeding; or (3) was waived at trial, on appeal, or in any previous collateral

proceeding. Ariz. R. Crim. P. 32.2(a). This Court has found Arizona’s preclusion

rules to be adequate and independent state grounds to preclude federal review. See

Stewart v. Smith, 536 U.S. 856, 860–61 (2002) (determinations made under

13

Arizona’s preclusion rules are “independent” of federal law); see also Ortiz v.

Stewart, 149 F.3d 923, 931–32 (9th Cir. 1998) (rejecting argument that Arizona

courts have not “strictly or regularly followed” Rule 32). Accordingly, this Court

lacks jurisdiction to consider any challenge to the state court’s rejection of Ovante’s

claim that the trial court incorrectly responded to a jury question.

In any event, Ovante does not clearly challenge the state court’s alternative

ruling rejecting this claim on the merits. Thus, even if the state court’s ruling did

not rest on adequate and independent state ground, Ovante has not provided any

reason for this Court to review the claim. This Court should therefore deny

certiorari on this claim.

II.

The state court correctly rejected Ovante’s claim that his guilty plea

was involuntary.

During Ovante’s guilty-plea colloquy, the trial court inaccurately advised him

that he could receive a parole-eligible life sentence. App. 72a. The post-conviction

court found, after an evidentiary hearing, that the “prospect of a release before

Defendant died was a material factor to him to choose to admit guilt and eligibility

factors.” App. 60a. Nonetheless, the post-conviction court held that any incorrect

information about Ovante’s parole-eligibility did not render his guilty pleas

involuntary. App. 72a. Ovante argues that this Court should summarily reverse the

state court’s rejection of this claim, asserting it is “plainly wrong” under Lynch and

“squarely foreclosed by this Court’s clear precedent.” Pet. at 18. He is incorrect.

Lynch has no application to a determination of the voluntariness of a guilty plea.

14

The test for determining the validity of a guilty plea is “whether the plea

represents a voluntary and intelligent choice among the alternative courses of

action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970).

Even assuming the possibility of receiving a parole-eligible sentence was critical to

Ovante’s decision to plead guilty, that possibility did in fact exist in the end. As

explained above, Ovante did receive a parole-eligible life sentence on the conviction

for which he was not sentenced to death. In Chaparro, the Arizona Supreme Court

held that the sentence is enforceable even though it was more lenient than the

sentences authorized by law at the time: “Regardless of [the parole eligibility

statute], Chaparro is eligible for parole after serving 25 years pursuant to his

sentence, and his illegally lenient sentence is final under Arizona law.” Chaparro,

459 P.3d at 55, ¶ 23.

That makes this case analogous to others in which courts have declined to

permit rescission of a guilty plea where the problem associated with the plea was

subsequently remedied. See, e.g., Pickens v. Howes, 549 F.3d 377, 382 (6th Cir.

2008) (“[W]e hold that when a sentence is modified to make it consistent with state

law and to give the defendant the benefit of his original plea agreement, the

Constitution does not require the withdrawal of a once-illegal plea.”); United States

v. Greatwalker, 285 F.3d 727, 730 (8th Cir. 2002) (holding that rescission of the plea

may be “unnecessary when the sentence is “corrected to give the defendant the

benefit of the bargain”); United States v. Roberts, 5 F.3d 365, 368–70 (9th Cir. 1993)

(remanding the case to district court to either delete the three-year term of

15

supervised release from the sentence or allow defendant to withdraw from his guilty

plea as a remedy for court’s failure to inform defendant of supervised release

ramifications); State v. Villegas, 281 P.3d 1059, 1062, ¶ 13 (Ariz. Ct. App. 2012)

(failure of court to advise the defendant correctly before entry of guilty plea was

cured by the court fashioning a remedy that gave defendant “the benefit of his

bargain”); State v. Gourdin, 751 P.2d 997, 999–1000 (Ariz. Ct. App. 1988)

(defendant suffered no prejudice from illegal sentence that was modified by the

court to give the defendant the benefit of his bargain). Because Ovante actually

received a parole-eligible life sentence, and that sentence is enforceable under

Arizona law, the post-conviction court did not err in finding that Ovante “got the

benefit of the bargain” in his guilty plea.

The post-conviction court correctly rejected Ovante’s voluntariness claim.

Ovante was told that he could receive a parole-eligible sentence, and ultimately

received such a sentence. Even if what he was told was incorrect at the time of his

guilty plea, his plea was not involuntary because his parole-eligible life sentence is

enforceable. This Court should deny certiorari.

16

CONCLUSION

Respondent respectfully requests that this Court deny the petition for writ of

certiorari.

Respectfully submitted,

LAURA CHIASSON

Deputy Solicitor General/

Acting Section Chief of

Capital Litigation

(Counsel of Record)

KRISTEN K. MAYES

Attorney General

of Arizona

DANIEL C. BARR

Chief Deputy Attorney

General

GREGORY HAZARD

Senior Litigation Counsel

JOSHUA D. BENDOR

Solicitor General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

400 West Congress, Suite S-315

Tucson, AZ 85701

(520) 628-6520

Laura.Chiasson@azag.gov

ALEXANDER W. SAMUELS

Principal Deputy

Solicitor General

Counsel for Respondent

17