By Alexis Hoag-Fordjour
November 2, 2022
at 6:42 p.m.
During oral argument on Tuesday at Cruz vs. Arizona, the judges considered whether a state procedural rule prevented John Cruz, who was sentenced to death, from obtaining relief on his federal due process claim after the state conviction. To answer this question, the court must determine whether Arizona Criminal Procedure Rule 32.1(g) provides an adequate and independent state law ground for refusing to recognize Cruz’s federal law. Rule 32.1(g) is a procedural mechanism that allows plaintiffs in Arizona to challenge their conviction or sentence when there is a “significant change in the law” that would impact their case. The judges’ questions explored two main areas: the state’s authority to limit post-conviction scrutiny; and Arizona’s determination of a “significant change of law” for purposes of Section 32.1(g).
In the background, a Pima County jury convicted Cruz of capital murder in 2005. During his sentencing hearing, Cruz asked to tell the jury that if they spared him the death penalty, he would would not be eligible for parole. In doing so, he referenced a 1994 Supreme Court case, Simmons v. South Carolina, who held that jurors needed to be given this information to refute a finding that the defendant posed a danger in the future. The court held that this information was part of the defendant’s constitutional right to due process. However, consistent with Arizona’s view of Simmons, Cruz’s trial judge denied his request. The jury returned a death sentence. Cruz unsuccessfully appealed his Simmons claim in state post-conviction proceedings. Then, in 2016, when the Supreme Court ruled Lynch vs. Arizonaordering the Arizona courts to enforce Simmons, Cruz renewed his appeal. This time he pointed to rule 32.1(g), explaining that Lynch was a significant change in the law.
Judge Clarence Thomas posed the first question, asking Cruz’s attorney, Neal Katyal, if there was even a federal issue for the court to decide given that Arizona was simply applying state procedural law. . Although Katyal was quick to address the issue, the question signaled Thomas’ tendency to speak out against the petitioner. In a somewhat similar vein, Chief Justice John Roberts denied that Arizona was acting with any hostility in enforcing its procedural rule and thought that Arizona was simply limiting post-conviction review, which fell squarely within the jurisdiction of the state. Judge Samuel Alito then interrupted Katyal’s response to the Chief Justice with a guess. When Katyal pointed out a flaw in Alito’s speculative script, Judge added, “I wanted to make that part of my hypothesis as well.” Rather than clarifying the issue in court, opening questions, including Judge Neil Gorsuch’s requests, revealed the judges’ reluctance to tackle the relatively simple facts of the case: the opportunity for the Arizona to rely on state law to prevent Cruz from seeking the quashing of a death sentence that violates federal law.
Alito echoed the Chief Justice’s thoughts, asking if there was anything wrong with a state limiting its post-conviction review process. Katyal agreed that it was acceptable for states to limit post-conviction, but once the state creates a forum for such review, it must do so impartially and with predictability and notice to the accused. . Arizona’s interpretation of rule 32.1(g) does not, Katyal said. Before her time was up, Judge Sonia Sotomayor invited Katyal to explain why the opinions reflected in the questions of her more conservative colleagues were wrong. The prompt allowed Katyal to point out that Arizona’s interpretation of rule 32.1(g) in Cruz’s case was novel, something the Supreme Court precedent specifically prohibits.
After brief opening remarks from Arizona attorney Joseph Kanefield, Thomas posed the first question again. He wanted to know if Arizona would consider detention in Lynch “a significant change” if the Arizona Supreme Court had so decided. When Kanefield quickly and confidently answered “no”, despite admitting he had no example to back up his answer, Judge Ketanji Brown Jackson stepped in, forcing the attorney to back down. Kanefield tried to distinguish what seemed, by all accounts, a change in the law between the treatment of Arizona Simmons after Lynch, as not constituting “a transformative event”. Judge Elena Kagan had none of that. “Maybe I’m simple-minded about it,” she said, “but at point A, Simmons was not operational in Arizona, and at point B, Simmons operated in [Arizona].” When Kanefield again attempted to downplay the extent to which the law had changed, Kagan responded in plain language: “The law is not there to be invoked. Now the law is there to be invoked… This is as important a change in law as there is.
All three liberal justices — Sotomayor, Kagan and Jackson — appeared to agree squarely with Cruz’s arguments. When Sotomayor asked for an example of when the U.S. Supreme Court or Arizona High Court overruled its precedent (which would be a significant change in law), and Arizona refused to apply rule 32.1(g), Kanefield was unable to produce one. At another point, Kagan joked that “Kafka would have loved” Arizona’s handling of Cruz’s federal claim, which the state denied no matter how or when it raised it.
Comments from Judges Brett Kavanaugh and Amy Coney Barrett seemed to indicate that they, too, might be receptive to Cruz’s arguments. Barrett described Kanefield’s efforts to downplay the law change as “a kind of artificiality” and “haircut.” Near the end of the argument, Kavanaugh noted that other states had refused to file amicus curiae briefs in support of Arizona’s position.
As for other states, Jackson worried about what a decision for Arizona might communicate: “It [would give] other states…a roadmap for challenging the criminal law rulings of this court. When Kanefield attempted to allay Jackson’s fears, Kagan cheered. She pointed out a “shock[ing]footnote in Arizona’s brief, stating that “the State contends that Lynch was badly decided. Given the footnote, Kagan accused Arizona of “pushing [its] nose” to the court. Alito attempted to salvage Arizona’s arguments, summarizing them in a comment rather than a question. After a brief rebuttal from Katyal, the Chief Justice thanked the lawyers.
If Cruz wins, Arizona would be required to apply Simmons (Going through Lynch) to his case and the cases of approximately 30 other petitioners on death row in Arizona. To apply Simmons would likely require Arizona to grant each of them a new sentencing hearing at which jurors would learn of their parole ineligibility. However, a victory for Cruz means garnering the support of at least two of the conversational judges, which is by no means a given. Whatever the outcome, the court’s decision will likely respect the narrow facts of the Cruz case.