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March 28, 2022

SCOTUS grants cert in Arizona capital case to address state limits on collateral review

The US Supreme Court granted cert in three cases this morning, and one involved a cert petition from a defendant on Arizona's death row.  However, the issue on which SCOTUS granted cert in Cruz v. Arizona is likely only to excite collateral review and habeas fans:

Issue: Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

But while this statement of the issue may not seem all that exciting, these paragraphs from this amicus brief in support of cert from Habeas Scholars suggests a lot is at stake here:

Amici urge this Court to grant certiorari — or summarily reverse — to stop Arizona’s use of collateral procedure to discriminate against established constitutional rights.  “[S]tate courts have the solemn responsibility, equally with the federal courts ‘to guard, enforce, and protect every right granted or secured by the constitution of the United States.…’” Steffel v. Thompson, 415 U.S. 452, 460-61 (1974) (quoting Robb v. Connolly, 111 U.S. 624, 637 (1884)). They cannot selectively disregard particular constitutional rights....

This Court’s intervention is both necessary and appropriate.  The Arizona decision results in the clear violation of a federal right, and the Arizona Supreme Court’s violation of the Supremacy Clause itself merits this Court’s intervention. Moreover, there is jurisdiction to review the judgment because the state ground is neither adequate to bar review nor independent of federal law. And because Arizona appears to be a singular outlier in its treatment on collateral review of the federal rights at issue here, correction of this error would not affect the practices of other states. Instead of being disruptive, reversal here would restore the appropriate federal-state balance, in accord with this Court’s Supremacy Clause precedents.

March 28, 2022 at 11:01 AM | Permalink


Looking at the rule in Arizona as explained in the underlying opinion, it does not look that bizarre. The basic rule is that claims of trial court error need to be raised on direct appeal rather than collateral review. If a claim is defaulted on direct review, it can only be raised on collateral review as a claim of ineffective assistance (either of appellate or trial counsel). A lot of states (and the federal courts) have the same rule.

What appears to be somewhat unique is Arizona is the limited exception for allowing some claims of trial court error to be raised if it is based on a "new rule." But again, federal habeas has a similar rule.

I am not sure why the U.S. Supreme Court granted certiorari in this case. If it's a permissible restriction in federal statutes, it should be a permissible state law restriction. And if the U.S. Supreme Court finds that states have to permit claims of trial court error to be raised in collateral review, that would be a big change.

Posted by: tmm | Mar 28, 2022 12:42:33 PM

tmm --

Please. Comments even slightly adverse to the criminal don't get a big welcome mat in the comments section. Especially disfavored are those that look at the text of the underlying law. But FWIW, I agree with your assessment.

Posted by: Bill Otis | Mar 28, 2022 2:45:45 PM

Cruz did raise the issue at trial and on direct review. But AZ decided that Simmons v. SC did not apply in AZ. Then, in the case now on cert, the court held the meaning of R32.1(g) excluded Simmons claims raised after Lynch v. Arizona. Prior to this case, R32.1(g) reached claims based on a reversal in controlling precedent. Hence the AISG issue. Hope that helps!

Posted by: John | Mar 28, 2022 3:01:06 PM

John, I am not sure that I agree with your read of the direct appeal. I am reading that opinion as Cruz making a Simmons-related claim but not an actual Simmons claim. But, if your read is accurate, Cruz would have a legitimate federal habeas claim that the Arizona court's direct appeal decision was contrary to or an unreasonable application of Simmons, not necessarily one which would prevail, but certainly an argument worthy of a certificate of appeal.

To the extent that he is returning to state court because he failed to properly present a true Simmons claim, I don't think the past interpretation of Rule 32.1 matters for certiorari. Assuming that, prior to Cruz, Arizona interpreted its rules as allowing trial court error to be raised in a collateral review petition, Arizona -- like every other state -- has the authority to change its rules on what can be raised in a state collateral review petition. I am not sure, from a constitutional perspective that there is a legal difference between the rule in my state which absolutely bars claim of trial court error and Arizona's rule which bars some claims of trial court error and permits others. The Arizona's court interpretation of its own rule (even if that interpretation represents a change) is still a state court interpreting a state law which is traditionally beyond the scope of federal review. Which brings me back to my main point, I don't see, unless the U.S. Supreme Court is considering a big change in what qualifies as an independent state ground, how the Arizona Supreme Court's reliance (even if erroneous) on its rules to hold that this type of claim is not permitted on collateral review is not the end of the issue as far as state collateral review is concerned. Whether, Cruz can get around default in federal habeas might be another matter if he can somehow shoehorn a Martinez claim about ineffective assistance by collateral review and trial counsel related to failure to request a proper instruction.

Posted by: tmm | Mar 29, 2022 11:28:36 AM

The point I was making about changes to R32.1(g) had to do with adequacy, not independence: the unforeseeable and unpredictable application call into question its adequacy to foreclose federal review. As for federal habeas, I would think that states would want first crack at correcting course, but the AZ SCt didn't seem to have the appetite here. And if the ground is, indeed, inadequate, wouldn't that also overcome the related default?

Posted by: John | Mar 29, 2022 1:38:30 PM

I'm surprised that no one has remarked on the fact that this is a successive state collateral review petition, filed after Arizona courts denied the first one (and presumably SCOTUS denied cert).

Arizona does have a legitimate interest in disallowing successive petitions that boil down to "you got it really wrong the first time." If the outcome was a really unreasonable application of federal law at the time the decision became final, isn't that what the Ninth Circuit is there for?

Posted by: Jason | Mar 29, 2022 7:01:58 PM

I’m not a lawyer, so apologies if I’m missing something obvious.

In the event the Court answers the QP with a “no,” what happens? The Arizona Supreme Court’s judgment denying post conviction relief under the state rule stands, right? I don’t understand what a favorable outcome for the petitioner on the rewritten question would do. I recognize the petitioner would stand a chance of having his death sentence vacated if the Court also granted cert on the QP of whether the state court’s construction of the state habeas rule was incorrect in the context of Lynch, but given the absence of the second question, this case right now this seems limited to an advisory opinion.

Posted by: Jake | Mar 29, 2022 7:34:24 PM


The Arizona Supreme Court declined to address the merits of whether, under Lynch and Simmons, the jury instructions in this case were flawed. If the U.S. Supreme Court found that the Arizona procedural bar was invalid, they would vacate the decision below and remand with directions to address the merits of the claim.

Posted by: tmm | Mar 30, 2022 10:40:10 AM


Thank you for the response. In essence by rewriting the QP the U.S. Supreme Court won't address the Simmons/Lynch claim in this iteration of the case, right? It would have to come back to the Court on another cert petition?

Posted by: Jake | Mar 30, 2022 8:37:02 PM

Jake, essentially yes. If the U.S. Supreme Court finds that the Arizona procedural bar is invalid, it would presumably give the Arizona Supreme Court first crack at the merits of the Simmons/Lynch claim. Or at least, that is what the rewrite of the QP would allow them to do.

While trying to read between the lines of an order is a good way to guess wrong, if the Supreme Court was going to consider the merits of the claim as well as the validity of the procedural bar, the best way to do that would have been to make its rewritten QP an additional question for the parties to address while keeping Cruz's QP.

Posted by: tmm | Mar 31, 2022 11:39:22 AM

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